Outdated Science Outdated Laws

As marijuana inches closer and closer to legalization at the federal level, it is currently legal for medical use in twenty-six states. For recreational use it is legal in seven states and DC. With the increased use of marijuana both medicinal and recreational, we have seen reports of increased DUI’s relating to marijuana. A study conducted by AAA showed that in Washington, a state where marijuana is recreationally legal, fatal road crashes involving marijuana had doubled. Opponents of legalized marijuana use the study as proof that legalizing marijuana is bad and will cause more fatalities on the road. But what the study failed to do was address that Washington does not test for marijuana properly. The problem is most of our country uses outdated testing procedures to determine cognitive and motor impairment. Much of the country uses the same blood and urine testing procedures that Washington uses. These testing procedures are out of date and inaccurate in determining if a driver was impaired. These blood and urine tests for certain marijuana metabolites that do not prove the person is currently impaired. Instead they merely show past use of marijuana, which can stay in the system for many weeks or months.

Inaccurate and outdated testing procedures falsely criminalize non-impaired drivers. These tests are based off of old science and are unfair when compared to alcohol impairment testing. A few states have been proactive by updating their testing procedures or removing marijuana from testing altogether. In California, they have moved away from chemical tests to determine marijuana impairment as it is deemed unreliable. They instead would rely on field sobriety tests to determine cognitive or motor impairment and the law enforcement officer’s discretion. In Nevada there is a bill that approaches the problem differently. Assembly Bill 135 would change and update the testing procedures for marijuana to make it more accurate.

The purpose of Assembly Bill 135 is to change and update marijuana related testing practices. It would replace urinalysis testing with updated blood testing to determine possible cognitive and motor impairment of a driver. This bill is sponsored by the Nevada Assembly Judiciary Committee. Prominent local officials and experts support this bill including, the Nevada District Attorneys Association, Assemblyman Ohrenschall, Clark County District Attorney Steve Wolfson, and student doctors and researchers Graham Lambert and Charles Cullison.

According to testimony and research presented to the Nevada’s Assembly Judiciary Committee by student doctors Graham Lambert and Charles Cullison, urinalysis testing cannot determine cognitive and motor impairment as it cannot accurately test for the impairing psychoactive compound THC. The potential for false positives is quite high, due to the testing of an inert metabolite THC-COOH, which does not cause any cognitive or motor impairment. This metabolite stays in urine and blood for an extended period of time. The bill would remove this inert metabolite from testing practices.

When compared to alcohol testing, in which the blood alcohol content (BAC) is measured to determine impairment at the time of driving, it is obvious that marijuana testing needs to be updated to be fair. Marijuana testing should be as accurate as alcohol testing. Imagine being charged with a DUI for drunk driving without having consumed alcohol in days or weeks. Most would agree that this is unfair, immoral, and defies common sense. But that is exactly the case with marijuana testing today.

According to The Nevada Appeal newspaper, Eric Bauman of the Metro vehicular investigation unit showed support for removal of the urine test and updating of blood testing for the compounds that actually indicate marijuana impairment. He said those compounds listed in AB135 are, “Much more indicative of the person being under the influence. The goal is to not cast too wide a net, not run the risk of catching individuals who are not under the influence.” Nevada’s local law enforcement and District Attorney agree that the current laws and testing practices currently criminalizes non-impaired drivers and will continue to do so unjustly.

For those using marijuana legally and lawfully, Nevada law must provide for accurate testing. Innocent people could be falsely charged with a DUI and face fines, imprisonment, loss of driver’s license, job, and/or custody of children. While it seems like common sense to update these laws, there are some arguments against it.

Some may argue that changing these testing procedures would make it easier to get away with driving while high. However, these updated testing procedures do not lower the standards for determining impairment. Thus it will not give any kind of leniency, exceptions, or exemptions to marijuana users. So claims that this will make it easier to get away with “high driving” are unequivocally false. Another argument against it is increased costs for law enforcement, local government, and state government. That claim is mostly false because our local and state forensic labs have the ability to implement these updated testing methods without any additional equipment or costs. Updating the testing does not entail new testing equipment or methods, instead it changes which specific marijuana metabolites that are tested. States like California remove chemical tests for marijuana altogether in favor for other methods to determine impairment. They tend to focus on driving pattern, statements to the police, physical appearance, performance on field sobriety tests, and other cues of actual motor impairment.

The best solution to the problem is to remove marijuana from tests all together. Science will always progress and get better, so we constantly have to update laws as the testing practices get better. By removing marijuana from the testing altogether, they can focus on more and better law enforcement training. Making law is a long and complex process. So the laws will always be far behind current science. If law enforcement officers are better trained to determine impairment in drivers based actual driving patterns and reduced motor function, then we will not have to constantly update laws with new tests. Nevada is heading in the right direction by updating its laws with current science. It will help to protect citizens from wrongful DUI convictions and progress our laws forward.

AB135 was voted by the Nevada Assembly and passed on April 21st. On May 11th AB135 was voted on and passed by the Nevada Senate. Governor Sandoval signed AB135 into law May 23rd. This is a victory for the state of Nevada and its citizens.

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Mike Ruggiero is a political commentator from Las Vegas.