What should be the legal limit for driving with marijuana in your system?

Illinois is a zero tolerance state when it comes to driving with marijuana in your blood.  In other words, you can smoke pot late one Saturday night and be charged with a DUI a week later because it was still in your blood system. I have blogged about this before, including this memorable post about a young woman who received a seven year sentence after being involved in a fatal crash several days after smoking cannabis.

But now that other states are allowing for medical marijuana, or legalizing it, those states are debating “legal limits” for cannabis.

Washington TV station KIRO TV ran their own tests, which showed that coming up with a legal limit isn’t easy, because everyone has different tolerances.

There have been some interesting blog posts in response to KIRO’s report.

Jacob Sullum on Reason.com has an interesting discussion, including these thoughts:

the fact that “the intoxicating effects of marijuana vary…from person to person,” which helps explain how Norton was still OK to drive at 36.7 nanograms, is relevant, but it cuts both ways. Perhaps some people are impaired at five nanograms, but it seems clear that many are not. Setting a low cutoff may seem like erring on the side of caution, but that is true only if you discount the injustice of arresting and punishing people for driving under the influence when they do not actually pose a hazard to others. The variation in responses to marijuana, which is partly a function of tolerance and experience … but also due to pre-existing differences, argues against having any sort of per se standard.

Over on Mother Jones’ website, Josh Harkinson points out that:

Ten states, many of which have legalized medical marijuana, simply make it illegal to drive with any trace of marijuana in your blood. Other states essentially regulate the drug like alcohol, requiring drivers to stay below a set limit of cannabinoids in their blood. When Washington voters legalized pot last November, they also outlawed driving with a blood THC level over 5 nanograms per milliliter—about half the level detected in Koon. Ohio and Nevada’s limit is even stricter: 2 ng/ml. These rules appeal to a public accustomed to drunk-driving standards, and they give police a simple benchmark for making arrests.

But these approaches don’t account for what scientists know about marijuana’s effects on drivers. “The reality is that alcohol and cannabis are two very different drugs that affect people in very different ways,” says Jan Ramaekers, a psychology and neuroscience professor at Maastricht University in the Netherlands. A 2009 study funded by the National Institute on Drug Abuse found that THC can persist in chronic pot smokers’ blood for a week after they stop smoking, sometimes at levels in excess of 3 ng/ml. Other research shows that those residual blood levels (and sometimes even much higher levels) don’t impair most heavy users’ psychomotor skills. If the goal is to arrest only people who are driving dangerously, Ramaekers says, then laws like Washington’s could lead to a rash of false convictions.While booze can make people drive faster and more aggressively, marijuana has the opposite effect: Pot smokers, studies show, tend to compensate for their impairment by slowing down and leaving larger gaps between themselves and other cars. Still, Ramaekers cautions against thinking that stoners acting like Sunday drivers are safer. Marijuana users may “try to create their own box of safety, and within that world they can operate fine,” he says. “But there’s a lot of other information outside of that box that they can’t process, and that is a problem.”

What do you think?

My thoughts on the last three weeks of TLC’s DUI show

TLC’s DUI show returned to its lineup at the end of June.  When the show originally aired in December, I wrote weekly reviews, and my plan was to do the same for the new episodes.  Obviously, I have not kept up with my plans, in large part because the show itself hasn’t given me too much material to write about.

In the past three weeks, TLC has aired six new episodes, but the episodes tend to be superficial, with two featured arrests, plus two to five more stops or arrests shown in varying degrees of detail.  All of this in a half hour show that probably has 7 or 8 minutes (at least) of commercials.

Most of my complaints about this show from before remain: there is virtually no attempt to explain the Oklahoma legal system (the show shoots there); lawyers are almost never seen and never given an opportunity to explain what is going on; nor are experts on field sobriety testing, policing, toxicology, alcoholism or addiction are presented.  Last week, we saw one defendant plead guilty without having consulted with, let alone hire, an attorney.  She (and we) had no idea of what the consequences would be.

Without explanation, we are shown a few traffic stops, and out of those, follow two of them through a plea hearing (or occasionally, the case being dismissed for lack of evidence).  No trials have been shown.

The only improvement in the show in the new batch of episodes is that they have stopped being so reliant on DUI roadblocks and now virtually all of the DUI arrests come from traffic stops or accidents.

The lack of follow-up can be frustrating.  In the past two weeks, two separate arrestees proclaimed their innocence and denied drinking or using drugs.  But the results of their breath or blood tests were never revealed.

No one ever gets to second-guess the officers.  In one of last week’s episodes, an officer pulls a car over because someone threw a cigarette out the window.  The officer makes the bizarre assertion that when “anyone throws a cigarette out of a window it is a good sign they are drunk.”  When I heard that I had to stop and re-play to see if my ears were deceiving me.  What kind of nonsense is that?

But the traffic stop got even more bizarre from there.  After the officer curbed the vehicle, the driver quickly jumped out of his or her seat and the officer could not determine who had been driving.  He tried to get both of the two men who exited the vehicle to confess, but they each denied being the driver.  Next, the officer began turned his attention to a petite young female, and tried to get her to admit to being the driver.  The officer ignored, or failed to notice, that she had a black eye.  Ultimately, she stated that she would “take the blame” – yet the officer never seemed to be concerned that perhaps this woman was lying because either she was afraid of one of the men in the vehicle, or that she was trying to help one of them out by taking the blame, thinking that she was the “least intoxicated” of the bunch.  The officer did not investigate to find out the truth; it appeared that all he cared about was that he had someone to test.  The officer appeared upset, accusing the woman of “obstructing” him, and wasn’t pleased when she passed the portable breath test.  He ultimately charged her with “reckless driving” even though she did not drive in a reckless manner.

Which is not to say that everyone is innocent.  Many of the arrestees in the past few weeks were definitely under the influence of something, and many of them were either repeat offenders or had histories of alcoholism or drug addiction. It would have been very helpful to get opinions from counselors or psychiatrists to discuss addiction and treatment.

TLC’s DUI show to return June 28th

TLC’s DUI show will return for its second season June 28th. As you may recall, this show followed Oklahoma patrol officers, with each episode highlighting two DUI arrests, from stop through court resolution.

Here is video from the first episode of the upcoming season: http://embed.5min.com/517382625/

If you search this blog by clicking the tag at the bottom of this post for TLC’s D.U.I. show, you can read my comments about the first season.

Amongst my criticisms of the first season were:

  • the officers were treated like experts; and no one was ever brought on camera to critique the manner in which they did their job or how they determined that someone was under the influence (even though 25% of the defendants depicted were found not guilty, and others were given reduced charges);
  • no lawyers were on the show, to explain the legal process or to raise doubts about the prosecution’s case, or just to provide some context to what was going on; and
  • there was very little discussion about the diseases of alcoholism and drug addiction, and the options for curing it.

I plan to continue to blog my comments about this show when it airs. Stay tuned!

Notes on Week Three of TLC’s DUI show

1.   The pattern of one of the four defendants having his or her case dropped by the prosecutors after they learn the results of the blood test continued this week when Jody’s case was dropped.  This now makes three dropped cases out of twelve, or a 25% WRONGFULLY ACCUSED defendant ratio.

This does not include Travis’ case.  Travis blew 0.07 on the breath test, and he was not charged with a DUI, but a lesser offense referred to as “DWI” on the show (more on that later).  Counting Travis, the WRONGFULLY ACCUSED rate jumps to 33%!!

Watching the show, I could not figure out why Jody was suspected of being under the influence.   She didn’t have an odor of alcohol?  Why did they guess that she was under the influence of prescription medication?  Do the officers feel any shame at arresting this woman and putting her under so much stress because of their incorrect guess? Is it possible that these officers feel pressure to make arrests just for the TV show?  Do they get pressure to make arrests from other sources?  I suspect that they do.  There doesn’t seem to be much sympathy for people whose lives are upturned by these careless and faulty accusations of DUI.

2.   Once again, the focus is on roadblocks.  This is probably because it is easier for the TV show producers to set up camp at a roadblocks where there is a high probability that at least one person will get arrested for DUI over the course of a night.  However, this highlights a fact that often gets overlooked: the overwhelming majority of DUIs do not involve accidents, and many of them don’t involve impaired driving.

3.   Another recurring problem is the absence of lawyers on the show.  In these two shows, two of the defendants were facing serious felony charges (three time DUI offender James, and Casey, who was charged with possession of cannabis with intent to deliver, plus DUI and driving on a suspended license).  In addition, Travis just avoided a felony case for a second DUI when he blew 0.07.  All of them should be consulting an attorney since they are facing major consequences including prison time.

At a minimum, it would be nice to have an Oklahoma lawyer explain the legal process there.  As I am not an attorney in Oklahoma, I can only guess as to what is going on off-camera.  It seems as though plea offers are being made off-screen, and we are shown the defendants step up in front of the judge to enter an agreed-upon plea on the record.  Some of the defendants have attorneys, but it seems like many do not.

4.   More Differences between Illinois DUIs and Oklahoma DUIs:
It seems that in OK there is a lesser charge of DUI (“driving under the influence”) called “driving while intoxicated” or DWI.  It occurs when a person’s blood alcohol level is between 0.05 and 0.08.

Illinois does not have a similar statute.  In Illinois, the officer must first charge you with a DUI, based on his probable cause to believe that you have been driving under the influence of alcohol, before you take an “evidentiary breath test” in a station.  (Although the officer’s probable cause can be based in part on a roadside “portable breath test” or PBT).  If you blow under 0.08, you are still charged with a DUI (although it might be dismissed — I just had a 0.01 case dismissed in Markham earlier this month).

In Illinois, there are the following statutory presumptions:

1. If there was at that time an alcohol concentration of 0.05 or less, it shall be presumed that the person was not under the influence of alcohol.
2. If there was at that time an alcohol concentration in excess of 0.05 but less than 0.08, such facts shall not give rise to any presumption that the person was or was not under the influence of alcohol, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcohol.
3. If there was at that time an alcohol concentration of 0.08 or more, it shall be presumed that the person was under the influence of alcohol.
625 ILCS 11-501.2(b)

So in other words, if a person blows 0.07 like Travis did, he will still be charged with DUI and, if the case goes to trial, the breath test is admissible but the judge or jury does not have to presume that the defendant either was, or was not, under the influence of alcohol.  There have been reported cases of convictions with BACs as low as 0.03.

Some thoughts on Week Two of TLC’s D.U.I. show


 

1.  Officer’s Negative Attitudes towards DUI suspects.   

I was stunned when one of the officers said something to the effect that “when someone starts making excuses for why they aren’t doing well on the field tests, I know that they are DUI.”

In fact, the NHTSA manual for “DWI Detection and Standardized Field Sobriety Testing” states that “the original research indicated that certain individuals over 65 year of age, with back, leg or middle ear problems, or people who are overweight by 50 or more pounds had difficulty performing” the one-leg stand and walk and turn tests.  That really should be pretty obvious — someone with a bad back isn’t going to be able to stand on one leg for 30 seconds without using their arms to balance, swaying or putting their foot down momentarily.

So when someone informs an officer that they may have a problem with a field test because of a bad back or other problem, the officer should be less likely to make a decision based on a field test result, not more.

Perhaps this ties into another thing that I noticed — in both weeks so far, one out of the four featured cases were dropped by the prosecutor after the results of blood or urine testing came back — a rather high error rate, if you ask me.

Also note that there was no follow up on the results of blood testing in the ATV crash.  The show presumes that these people were intoxicated, but were they?

I should also mention the excessive force that was used against one person who moved his arms a little bit when an officer tried to handcuff him.  This person was slammed into a car trunk, then again onto the ground, well beyond what was necessary to process the arrest.

2.    CDL drivers put their careers in jeopardy when they drink and drive.
In this episode, truck driver Wes worries about losing his job and his home after getting a DUI.  It turns out that he did well enough on his blood test that his case was dismissed.

But Wes had reason to worry.  In Illinois, if you have a CDL, you are looking at a one year disqualification for a first DUI, and a lifetime disqualification for a second one.  Moreover, many companies will refuse to hire a truck driver with a DUI on his or her background.  Good thing for Wes that he blew under 0.08.

3.    Alcoholics and drug addicts are always in danger of relapse.
Both episodes this week featured addicts — Keshia who had been in rehab and drug court for three years, and John, who was arrested for his fourth DUI.  Keshia’s story is familiar to anyone who knows an addict.  She had been clean and sober for three years, until she decided to break her sobriety at a bar on her way home from work.  She was stopped after driving on the wrong side of the highway.  Thankfully, she did not kill anyone.
John had been drinking daily for two years.  He ran into a roadblock on his way to pick his wife up at the airport.  He probably didn’t even feel particularly intoxicated.
At the end of their episodes, both have been through additional treatment and seemed a lot better.  But, as Keshia’s story shows, their sobriety is a tenuous thing, and they may fall off the wagon at any time.

4.    More ways in which Oklahoma DUIs are different from Illinois DUIs

— Fourth offender John is “punished” and does not get a fourth probation.  Instead, he gets two weekends in jail.  This is what prosecutors refer to as a “kiss.”  In Illinois, a fourth offender would be facing a mandatory non-probational sentence of at least three and up to seven years in prison.  (The entire sentencing hearing was not shown, so it is possible that the judge took into account John’s voluntary stint in rehab, and his need to take care of his wife, who suffers from multiple sclerosis — but in Illinois, no matter how much mitigation there may be, John would have to be sentenced to a minimum of three years in the penitentiary).
In addition, if this happened in Illinois, John’s driver license would be revoked forever, not just in Illinois but in every other state of the union (unless on one of his DUIs he successfully completed court supervision, in which case his license would be revoked for a minimum of 10 years).

— In Oklahoma, we are told that for a person under the age of 21, any amount of alcohol is sufficient for a DUI.  In Illinois, the 0.08 “legal limit” applies to everyone regardless of age.  However, in Illinois, a person under the age of 21 would face a “zero tolerance” suspension for driving with any amount of alcohol, even under 0.08.

— Jarrett gets a court date four days after his arrest.  In Illinois, Supreme Court rule 504 provides that in a misdemeanor case, the first court date will be between 16 and 60 days.  Typically, the first court dates falls around the 45th day after the arrest, which gives the defendant sufficient time to retain counsel and prepare a defense.  I don’t know how a person is supposed to be ready to defend a serious case in just a few days.

What did you think?

My Thoughts on the first two episodes of the TLC channel’s D.U.I. show

Preview of TLC’s new D.U.I. show

Last night, TLC debuted its new series, “D.U.I.”  Two episodes ran last night, each featuring two DUI arrests apiece.  We were also shown the booking process and court resolution.
Intercut with this were the comments of the arrestees and police.  At no point were any attorneys or DUI experts presented to give their own thoughts.

To me, the show neatly encapsulated many of the things I have been discussing in this blog.

1.    A DUI is expensive.
In both shows that aired last night, there were two arrestees — a college student and the head of a low-income household.  Emphasis was placed on the high cost of bond, court fines, the possibility of vehicle towing/impoundment and the economic consequences of a possible jail sentence.

2.    DUIs are big money-makers for local governments.
As I have previously stated, DUIs have become a big source of income for local governments.  In this show we see how exorbitant costs associated with a DUI impact average people who are barely getting by to begin with.
Faced with incarceration, these people have to suddenly come up with thousands of dollars for bond, fines, alcohol treatment and (not shown at all) legal fees.
As I have said before, it is politically safe for a politician to generate revenue this way; instead of being accused of raising taxes, they can claim to be tough on crime.  What they are actually doing is a regressive tax, that hurts the poor most.  These are also the people who can least afford a vigorous defense to these shaky allegations leveled against them.

3.    Police have “DUI on the brain”
Three of the four arrests depicted arose out of roadside safety checks or roadblocks. These defendants were driving perfectly fine, but they ran into a squadron of officers looking to add to their DUI totals.   (The fourth arrest was for some poorly explained minor moving violation that wasn’t depicted).  DUI roadblocks are a fairly recent development that would seem to violate our Constitutional right to be free from search and seizure unless there is a warrant or probable cause.  However, the courts have found what lawyers often jokingly call the “DUI exception” to the Constitution which allows all sorts of police tactics with the good intention of reducing the number of DUI-related traffic fatalities (we all know about the “road to good intentions” — notice how none of the DUIs on the show involve an accident?).

4.    DUIs are arbitrary and subjective
These officers were focused on the “smell” of alcohol or cannabis in the car.  Once “detected” the person was asked to exit the vehicle to perform field sobriety tests. This is all based on the say-so of the officer.  The officers had the discretion whether to order someone out of their car for sobriety testing.  In Justin’s case, the officer admitted that he had passed the field tests — yet he was arrested anyway.

5.    Field tests are not scientific
The theory behind “standardized field sobriety tests” are that they are to be given in a uniform manner, and compared with certain clues.  The NHTSA guidelines clearly state that the tests are not valid for a morbidly obese person, like Jessie.  Yet the officer arrested her, and she almost spent a week in jail, based on nothing.  Her case was eventually dismissed.

6.    DUIs are part of new prohibition agenda
It is true that all four defendants had consumed some alcohol or marijuana earlier in the day, but it was not clear that any of them were unable to drive safely.  People were being yanked out of their car merely for having consumed alcohol earlier — not for being impaired.  Keep in mind that the law requires that a person be “under the influence” but what was shown were arrests for merely “drinking and driving.”

7.    Where are the lawyers?
This show did not present any legal commentary.  It was not even clear if Jessie or Justin had any representation at all.  Is it possible that they could not afford an attorney?  Yes, especially after they probably went broke trying to bail themselves out of jail.   I was left wondering why Justin’s or Jimmy’s cases weren’t challenged in court or why Jessie was so resigned to going to jail when in fact her case was so weak that the prosecutor declined to proceed.

Bonus thoughts:    Differences between Illinois and Oklahoma

A.    In Illinois, you can be prosecuted for a DUI based upon any amount of an illegal drug in your blood, regardless of impairment.  Apparently this is not the case in Oklahoma, where Jessie apparently has a small amount of cannabis in her system, but below the threshold for a prosecution.
B.    Illinois does not allow for bail bondsmen.  Typically, in Illinois, if a person is charged with a misdemeanor DUI, the officer will set a “D” bond, which requires that the person put down 10% of the amount of the bond as a guarantee that he or she will come to court.  Sometimes a person is lucky and the officer issues them an “I” bond (or “recognizance bond”), which requires no down payment.  In a felony DUI case, a judge will set bond after a hearing held within 48 hours of the arrest.