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Legalization of Marijuana and the Prospect of Marijuana DUIs
While Proposition 19's attempt to legalize marijuana failed in California, the pro-legalization movement is still working to achieve that goal.
February 25, 2011 /Automotive PR News/ -- While Proposition 19's attempt to legalize marijuana failed in California, the movement is still working to achieve that goal. The sense of the defeat is that it was more at tactical loss than a strategic one. One of the reason given for the failure was bad timing, suggesting that off-term elections, with lower voter turnout, especially among young people.
Last year, state Assemblyman Tom Ammiano introducedAssembly Bill 390, legislation that would have made California the first state in the nation to legalize and tax recreational pot. It failed, and as did Proposition 19, sent to the ballot box in November. While it did not pass, the momentum is still there and is unlikely to go away.
The legalization movement will probably bring the proposition back in 2012, and the proponents have learned from the mistakes some things they need to change. Better timing (presidential election year), better education of voters, better drafting (uniform application throughout the state), funding a TV campaign earlier in the election cycle, would all improve the chance of passage.
With medical marijuana already legal in California, the potential for a "marijuana DUI" already exists, with and the eventual passage of legalization for recreational use, the potential is substantially increased.
California Vehicle Code Section 23152(a)
Driving a car under the influence of drugs is already prohibited in California. Section 23152(a) of the Vehicle Code makes it illegal to operate a vehicle while impaired:
- It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.
However, courts have stated: "[T]o be guilty of driving while under the influence of drugs in violation of Vehicle Code section 23152, subdivision (a), the ... drug(s) must have so far affected the nervous system, the brain, or muscles [of the individual] as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties."
The problem is determining if one is "impaired." With alcohol, there is a statutory presumption that one is impaired if your blood alcohol concentration (BAC) is 0.08 or above.
There is no such standard for marijuana. This means a prosecutor needs to prove your actual impairment by other evidence, such as driving erratically, field sobriety tests (FST) and other observations made by the officer.
Colorado's Proposed Legislation
Other states are also working to create legislation to deal with legalized marijuana use. A Colorado lawmaker has introduced legislation to create a "marijuana DUI" similar to the 0.8 percent blood-alcohol content used with drunken drivers. She purposed using cannabis content in the bloodstream, with measurements greater than five nanograms of THC per milliliter of blood charged with a DUI.
Like California, a driver can be charged with a drug-related DUI, including prescription medication, based on factors like behavior, a roadside sobriety test and traces of drugs found in a blood sample.
In addition, like California, there is no statutory limit for what amount of THC makes one impaired, leaving it up to the discretion of law enforcement and prosecution. Because the case becomes a battle of experts (the officer vs. defense witnesses), it becomes a much more difficult case to prosecute.
Scientific Studies on THC Impairment Levels
Studies have shown THC blood levels typically fall below 5 ng/ml in recreational (non-chronic) cannabis users within 60 to 120 minutes after inhalation, though some long-term users in Colorado claim they have developed toleration for higher levels over time. Recent studies show that, in general, alcohol tends to be a more dangerous drug for drivers.
Investigators in a study published in the Canadian Journal of Public Health wrote: "The findings point to cannabis as a potential risk factor in fatal crashes. Individuals who tested positive for cannabis but negative for alcohol had a 29 percent excess risk of having driven in a fashion that may have contributed to the crash, compared to drivers who tested negative for cannabis. ... Yet these estimates appear small compared to alcohol and some prescription medications."
Researchers at the University of Maryland's National Center for Trauma and EMS have found in a study of on-road crash data, "past use of cannabis (as indicated by the presence of marijuana metabolites in the urine) is not associated with an elevated risk of accident."
By contrast, drivers who test positive for THC in the blood above 5 ng/ml (indicating recent use of pot) have an elevated risk of accident compared to those with none or less than 5 ng/ml of THC.
Little research has been done on this and one report cautions, "Because recent studies involved only a few drivers with THC concentrations in that critical range, a reliable assessment of the associated crash risk is still lacking."
California will probably see a flurry of additional legislation (politicians always like to appear "tough on crime") to deal with this issue, should future efforts to legalize recreational use of marijuana be successful, but at the moment, it remains clear as smoke. If you have been charged under Vehicle Code section 23152(a), contact a knowledgeable California DUI attorney to discuss your facts and potential defenses.
Article provided by The Law Offices of Mark R. Deyoe
Visit us at www.mydui.com
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