Taking the High Road

For stakeholders in a the widening debate over how best to implement new drug laws, so-called "green DUIs" are a point of contention. Rick Wilking/Reuters

Ronnie Peyton had just wrapped up a long day at work, at a Seattle nonprofit that helps find housing for the homeless. It was Christmas 2012, and the weather in Renton, Wash., was frightful, but the 65-year-old had promised his daughter he'd drive to her place when he got off so they could have dinner together. Peyton had smoked some marijuana earlier that morning, as he does most days. He suffers from glaucoma, and his use of cannabis as a treatment is approved by his doctors and the state. As of two weeks earlier, it was also legal for anyone across Washington to get high.

What isn't legal is driving under the influence. But Peyton was 13 hours removed from his last toke and felt completely unstoned, so he hopped in his 1995 Corolla and headed to his daughter's house. On the highway, another driver bumped into him, so the two pulled over to assess the damage. The other driver called the Renton Police, and the officers "started messing with me," according to Peyton.

Peyton hadn't been drinking, but the small plastic bottle of marijuana in his pocket gave police the probable cause they needed to see if he was impaired. He blew a zero on the Breathalyzer, but the weed provided enough probable cause to impound Peyton's car and haul him down to the station for a blood draw.

As a medical marijuana user, Peyton was legally allowed to carry that herb before voters in Washington passed Initiative 502, the law that legitimized recreational use. And because 13 hours had passed since he last smoked, he was legally allowed to drive, even with that bottle in his pocket. But that law – the one that's supposed to make marijuana use more widely permitted – included a critical piece of fine print: a new "per se" standard for blood content of tetrahydrocannabinol (THC), the psychoactive ingredient in pot; a benchmark that gives police and prosecutors a supposedly objective standard to convict drugged drivers, the same way a .08 reading for alcohol tends to make wriggling your way out of a DUI charge impossible. The standard in Washington is 5 nanograms of THC per milliliter of blood.

Peyton registered at 8 nanograms, explainable by his regular use of cannabis and the drug's fat-soluble qualities: THC can remain in the system for days or weeks, especially for frequent users. So Peyton had to spend several thousand dollars on an attorney and go to trial before a jury acquitted him this fall. "I guess I was more believable than Dudley Do-Wrong and his cohorts," he told Newsweek.

What Peyton learned from his arrest was not to drive when he's tired and not to carry pot when he isn't going to be using it. But for stakeholders in a the ever-widening debate over how best to implement revolutionary new drug laws, cases like his only flame the bowl, as it were.

Medical marijuana users and defense attorneys in Washington state worry the fuzz sees Initiative 502 as an opportunity not to lighten up on pot violations but to crack down, using the new 5 nanogram standard as a weapon.

"Once you give them a shiny new tool, trying to get rid of it is really a pain in the ass," said Steve Sarich, executive director of the Seattle-based Cannabis Action Coalition. Sarich, a medicinal user, said he has measured his own blood and wakes up daily at between 20 and 25 nanograms, meaning he's effectively never legally allowed to drive. "This is Prohibition 2.0."

Law enforcement officials and some researchers have a different concern: Now that marijuana is legal, some residents may believe that they don't have to worry about smoking and driving, especially after they think enough time has passed.

Mark Kleiman, a professor of public policy at the University of California at Los Angeles and the state of Washington's so-called "pot czar," said the research shows that drivers often think they're fine to get behind the wheel after a couple hours have passed since they last lit up, when in reality they're still too stoned.

One study, conducted between 2011 and 2012 by investigators at the National Institute on Drug Abuse and the National Institute of Mental Health in Maryland, compared THC levels of 30 chronic smokers to a control group of occasional users over a period of four weeks. Among the results: THC levels remained in the system of those chronic users for weeks after they last imbibed. So did psychomotor impairment; in other words, they were still too high to drive, based largely on an analysis of their capacity for "divided attention," the mental multitasking required of us when we're barreling down the road.

"Even with low THC levels remaining, it's still in the brain, you still have impairment, and you are affecting the ability of the brain to function normally," said Marilyn Huestis, principal investigator at the National Institute on Drug Abuse. "Some subjects were significantly still impaired even three weeks after their last use. These data are worrisome."

Despite the concern on both sides, despite all parties working with a different set of irrefutable facts, the hard numbers don't actually show massive changes in enforcement since 502 became law. Drug-related driving arrests in Washington state were at 1,443 in 2006, up to 1,549 the year after and then to a recent high of 1,735 in 2011. The year I-502 was passed, in 2012, the numbers dropped to 1,621. As of early December 2013, the total was only 1,302.

Overall DUI arrests have mirrored these numbers, though: 21,346 in 2006, down to 19,391 in 2012 and 16,394 by December of last year. These declines could be attributable to two factors: budget cuts leaving fewer troopers on the road, said Washington State Patrol Sergeant Jason Hicks, and a yearslong education campaign to raise awareness about the dangers of driving under the influence.

So is there a crackdown on puffing and driving or not? The state patrol did see a 9 percent increase last year in the number of roadside stop blood draws that came back positive for THC from 2012 to 2013 – from 18 percent to 27 percent. State patrol spokesman Bob Calkins attributes that spike to any number of factors: stepped-up enforcement, greater awareness, more people driving after blazing or troopers' knowledge that getting a blood test can help ensure a DUI conviction, now that there's an objective measure in place.

"In the past, if you blew above a .08 [for alcohol] in many cases they didn't mess with marijuana," Calkins told Newsweek. "Even if you had both in your system, a joint in the ashtray," because the joint isn't necessary evidence: Driving under the influence is driving under the influence.

The new standard offers another realm in which to gather evidence – and another hammer for prosecutors. "It's a field of dreams," said Craig Platt, a defense attorney with offices in Seattle and the San Juan Islands. "If you build the law, the lawyers will come. Prosecutors are going to be more likely to try to defend the constitutionality of these statutes than they would have before, when you might just settle a case over lunch."

Aaron Pelley, a Seattle criminal defense attorney, told Newsweek he has definitely noticed an increase in so-called "Green DUIs," as the caseload at his firm has more than doubled in the past year. To Pelley, the explanation is pretty obvious: "Without question, [police and prosecutors] have taken a new militant stance towards using cannabis and driving."

So far, he has been unsuccessful arguing that people who admit that they're medical marijuana users aren't giving officers immediate probable cause for a blood draw, but he's much more successful in getting the results of those blood draws tossed, as police have taken to using a driver's refusal to submit to a test as probable cause to demand it – unconstitutionally. This year Pelley expects police to shift tactics and make it increasingly hard to defend his clients.

"My job will get harder over the next year," he said. "I won't be able to get the blood results suppressed anymore, and at that point, they can just tell a jury 'The law says 5 nanograms or over means you're under the influence. This person has 5.5 nanograms; you have a duty to convict.' "

That prospect has medicinal users such as Fredrick Briddle afraid. His DUI arrest came two years ago, before the 5 nanogram standard was enacted. The 30-year-old disc jockey from Tacoma was speeding, but he hadn't had anything to drink that night, and hadn't smoked weed in four or five hours. He uses cannabis to treat migraines – migraines that can get so fierce they've actually caused accidents, he said. They throw off his balance and his eyesight, and he's had to pull over repeatedly over the years to vomit.

Marijuana eradicated that problem, he told Newsweek, but if he'd gotten arrested after I-502, the 5.1 nanograms of THC in his system would have made him "automatically guilty." As it was, after $7,000 in attorney's fees and a successful purging of his blood test from trial, Briddle walked.

Since then, "I pretty much have almost stopped smoking, because I need to drive," he said. And consequently, "The migraines have started again."

Law-enforcement officers insist all this 5 nanogram hullabaloo is largely irrelevant. Police have to have cause to pull a car over in the first place, and they're making a judgment about impairment based on some tried-and-true tactics: Did the driver just hit a tree? Hand over a credit card instead of a driver's license? Is he slurring? "It doesn't matter what the substance is," Hicks said. "We look for the impairment caused by that substance."

For cannabis, there are a couple of additional tip-offs, Hicks said: raised or rigid taste buds can indicate a person has been smoking (something, including cigarettes.) Marijuana can, believe it or not, leave the tongue slightly green-tinged. Eyelid tremors are another clue, along with an inability to cross the eyes.

But how stoned is too stoned? And how long does it take for the effects of marijuana to wear off?

The answer is tricky. With alcohol, the old guideline is the one drink per hour formula. If you have four drinks in an hour, wait four hours to drive. But the effect of a single toke can last for hours; eat a magic brownie and it might not be a great idea to drive 'til tomorrow, depending on how much of a lightweight you are.

In 2004 Olaf Drummer, a Melbourne researcher from the Victorian Institute of Forensic Medicine, analyzed accident data from nearly 4,000 fatal crashes in Australia that involved only cannabis use and not some other drug or alcohol. Drummer found that any measurable amount of THC in the blood resulted in a twofold increase in the likelihood of getting into a fatal car accident. At 5 nanograms, the probability rose to 6.6 times greater, Huestis told Newsweek.

But what's impossible for the average user to know is how much THC is still in his or her system. Huestis analyzed blood work from 28 chronic users in her study; 13 of them had less than .25 nanograms per milliliter in their system within 19 hours. Occasional smokers should see their THC levels return to less than .5 nanograms in six to eight hours.

Kleiman suggests that while the driving-while-stoned issue is a "relatively minor problem with no good solution," there's one option worth considering, at least: spending some money educating people about how long they should wait to drive after smoking weed. If occasional users know they could still be impaired after five hours, they'd be much more inclined to wait: "Remember, cannabis tends to make people paranoid, unlike alcohol which fills them with Dutch courage."

If that paranoia keeps drugged drivers off the roads, maybe that's a good thing, man.

Taking the High Road | U.S.