"Per se failed in Colorado multiple times because legislators could not accept the possibility that people who are not impaired could be automatically guilty of DUI," Tvert says. Furthermore, he says, there's some evidence that low levels of marijuana intoxication can actually make drivers safer. That's both because marijuana can reduce risk-taking behavior, and because drivers tend to recognize that they are impaired. In two studies, one by the Department of Transportation, subjects expressed a growing reluctance to drive as they got high—even on a closed course. [emphasis mine]
Full article: http://www.abajourna...paired_driving/
Shorter (slightly) version from blog of lawyer interviewed for article: http://www.duiblog.c...paired-driving/
SCOTUS Ruling Could Complicate Laws on Impaired Driving
In December 2012, Emily Sue Falkenstein of Renton, Wash., drove into a marked crosswalk where wheelchair-bound Gregory Ramirez, 48, was crossing with his 6-year-old niece in his lap. The crash broke his leg and his wheelchair, and it left the girl with bruises and scrapes, according to court papers.
The responding officer said Falkenstein's car smelled strongly of marijuana, but Falkenstein refused to take a blood test voluntarily. At the time, Washington law made blood draws mandatory for anyone arrested on charges of felony DUI, vehicular homicide or vehicular assault. A warrantless test eventually showed above-legal levels of alcohol and marijuana in Falkenstein's bloodstream.
Initially, Falkenstein faced felony charges of vehicular assault and reckless endangerment. But between the crash and her July 2013 plea deal, the U.S. Supreme Court decided Missouri v. McNeely. In that case, the court said officers may not take blood samples from drivers who refuse to provide them voluntarily, unless they have a warrant or some kind of "exigent circumstance." The rapid disappearance of alcohol from the bloodstream is not considered an exigent circumstance, the court said, though it might be a factor.
Because of the ruling, King County prosecutors decided not to use the results of the blood test as evidence, says Falkenstein's attorney, Philip Petersen of Auburn, Wash...
As in the Falkenstein case, McNeely could complicate intoxicated-driving prosecutions all over the country.
Another controversial concern about McNeely is that it could invalidate the blood-testing requirements in states that imply consent laws, which say drivers consent to take tests by receiving driver's licenses. Because McNeely reaffirms that there's a constitutional right to refuse blood tests, some attorneys believe states won't be able to make waiving that right a condition of driving privileges. If courts agree, it could increase test refusals and thus make it harder to prove intoxicated driving.
"This means we can no longer sanction drivers who refuse blood testing by using that refusal as consciousness of guilt at trial. Nor, as was the case in Washington, can we mandate blood testing even in fatality cases," says Moses Garcia, a traffic safety prosecutor for the state of Washington. "This is a huge setback."
Lawyers on both sides say the wait time for a warrant is unlikely to cause many problems—at least not new problems. Leonard Stamm, a defense attorney who helped to write an amicus brief in McNeely for the National College for DUI Defense and the National Association of Criminal Defense Lawyers, says the new problems are arising in the few jurisdictions that were routinely taking blood without a warrant before McNeely. Some jurisdictions agreed with Missouri that alcohol dissipation creates a per se exigency; other states also had laws permitting warrantless draws in specific circumstances, such as after a crash.
"I used to be a district attorney in LA," says Long Beach, Calif., defense attorney Lawrence Taylor, whose Drunk Driving Defense treatise was cited by Chief Justice John G. Roberts Jr. in his concurrence to McNeely. "When they filed a case, I would make darn sure that there was sufficient evidence independent of the blood test to convict, because the blood test is probably not going to help you a whole lot."
The trouble, Taylor says, is telling the jury what the test results mean. In some states, there are "zero tolerance" laws that permit juries to convict if a blood test shows the presence of any controlled substance. (Some of these laws apply only to certain drivers or certain drugs.) But the standard in the majority of states, including California, is whether the driver was under the influence or incapable of driving safely.
"Let's say [the blood test] comes back and says Xanax or amphetamines. OK, how much? Some figure. OK, what does that mean? That's where they don't know," Taylor says. "Because there are very few studies and specific drugs tested as to how they impact the ability to drive a car safely. So they can't translate it for a jury into whether the person is under the influence."
Getting a warrant to test for marijuana presents a special challenge. First, marijuana is the most widely used illicit drug, according to the National Institutes of Health. It's also increasingly available, thanks to medical marijuana statutes in 20 states and Washington, D.C., and recreational legalization in Colorado and Washington.
There's some evidence that legalization has increased driving under the influence of marijuana in Washington state. After the state's December 2012 legalization date for possession, the Washington State Patrol's toxicology lab reported a 47.8 percent increase in DUI marijuana cases between January and July 2012 and from January to July 2013. Studies correlating traffic fatalities with marijuana have been less conclusive; one study found that fatalities actually went down after medical marijuana laws, and it suggested drivers were substituting marijuana for alcohol.
McNeely's warrant requirement could also complicate marijuana cases because THC, the active ingredient in marijuana, is eliminated from a user's bloodstream relatively quickly. By contrast, opiates like heroin or Oxycontin may take days to leave the bloodstream.
"A person who smokes marijuana can go from zero to well over 100 nanograms [of THC in the bloodstream] in a couple of minutes," says Chris Halsor, a traffic safety resource prosecutor for the state of Colorado. "But as soon as they ingest it, it starts to dissipate out of the system precipitously. [The driver can be] under 20 or under 10 within an hour."
[Too bad it sticks around in the urine so damned long, but this is good news for stoned drivers!]
Garcia says regardless of dosage, studies show THC will drop below 5 to 6 nanograms per milliliter—Washington's per se limit is 5 ng—60 to 75 minutes after the smoker's last puff. If the THC level is below 2 ng, the state's toxicology lab won't even confirm it was there. This is an especially big problem, he says, because drivers generally stop smoking before they get into the car.
[Hmm, after I'm in the car is sometimes when I START smoking! But good to know I just got to stall 'em as long as possible if they pull me over...]
In other states, however, marijuana-intoxicated driving is just as hard to prove with a blood test as other drugged driving. In fact, it may be harder in some ways. Colorado marijuana activist Mason Tvert, a spokesman for the Marijuana Policy Project, says scientists haven't been able to come up with a clear limit above which most or all drivers are unsafe. That's partly for the same reasons that the 0.08 alcohol limit isn't truly universal, he says: body weight and tolerance differ between drivers. But in addition, frequent marijuana use can leave a small amount of THC in the blood of sober people, throwing off test results.
[uhh, how exactly does THAT happen? They said "use," not "secondhand smoke."]
That's one reason that, when considering a marijuana DUI legal limit for a sixth time, the Colorado legislature chose the permissible inference rule.
"Per se failed in Colorado multiple times because legislators could not accept the possibility that people who are not impaired could be automatically guilty of DUI," Tvert says
I was impressed by reading some actual glimmers of logic and reason in there... But the takeaway is that we still need to watch our rearview mirror, drive like it's still two years ago as far as cannabis is concerned, and stall stall stall if we get pulled over and harassed about being stoned (whether you actually are or not).
Oh, and never, EVER let them take your blood without doing your best to take some of theirs, too. If we don't draw a line somewhere, there won't be one anywhere and forced blood draws are waaaay over mine and I would hope yours, too.
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