It’s a problem that many states have struggled with in recent years as the nation has moved towards legalizing marijuana and cannabis use has surged.
How can police tell if someone is driving under the influence of cannabis?
Although possession of small amounts of marijuana is legal in Virginia, driving while intoxicated — even while under the influence of weed — remains a felony in the Old Dominion, punishable by up to a year in prison.
But the means to test drivers for impairments are not readily available to state law enforcement.
This month, the Virginia Crime Commission — an arm of the General Assembly tasked with investigating criminal issues and making recommendations — discussed some possible steps police and sheriffs can take to address drunk driving. The Commission is expected to meet on December 5th to finalize its proposals for the parliamentary term beginning in January.
One thing being considered at the commission’s Nov. 16 meeting: changing state law to allow roadside screening devices, where officers and sheriff’s deputies can have a driver swab his or her cheek to remove saliva collect and test for marijuana and other drugs.
In the case of alcohol, alcohol tests and blood tests can determine whether the driver’s blood alcohol content at the time of collection is at or above the legal limit of 0.08. But there is no similarly recognized noise point for weed.
THC — the psychoactive chemical component of marijuana — typically stays active in the bloodstream for between 4 and 6 hours. But it’s almost impossible to tell exactly when the user took the drug within that timeframe.
That makes it difficult for cops to know if a driver was high at the time of a traffic stop — or, say, three hours earlier.
Virginia officials said the “oral fluid tests” would be considered to diagnose marijuana poisoning are similar to a “preliminary breath test” – a roadside breathalyzer test. While the test results are not admissible in a court of law, they can help determine when the cannabis was consumed and can be combined with other factors to provide a probable cause for extensive blood testing.
“You wipe the inside of someone’s mouth and you get a positive or negative result and it just gives you some clues,” Kristen Howard, executive director of the Virginia Crime Commission, told the Daily Press and Virginian-Pilot. “It was designed to show the recency of use – how many hours ago you used this drug.”
Another option being discussed is training more police officers and deputy sheriffs to become “drug detection experts” nationwide. These are specialized officers who are called in to assess whether someone behind the wheel is high.
A Virginia State Police officer, First Sgt. Dominic Sottile, told the commission that state and local agencies currently have 58 drug detection experts. But he said he would like at least 100.
“He’s the one I call when I don’t know what I’m seeing on the side of the road,” Sottil said. At times, officers might think they’re dealing with an alcohol case, he said, but “30 minutes later, a second drug could kick in.”
The Virginia General Assembly legalized marijuana in 2021. That meant people could use the drug in their homes and grow up to five plants at home. Using marijuana in public became a civil penalty, punishable by a $25 fine.
But neither drivers nor passengers on Virginia’s roads are legally allowed to use the drug in a car. And it remains a Class 1 misdemeanor — punishable by up to a year in prison — to drive under the influence of pot.
Under Virginia law, it is unlawful to drive with a blood alcohol concentration of 0.08 percent or “while such a person is under the influence of narcotics.”
However, they must also not drive under the influence of “other self-administered intoxicants or drugs of any kind or a combination of such drugs to an extent that impairs their ability to drive”.
There have been fears that driving while intoxicated will increase with the legalization of marijuana. Some of the more significant opposition to legalization in 2021 came from the American Automobile Association and other groups, who raised concerns the change would make roads more dangerous.
A recent state survey conducted by the Cannabis Control Authority reveals a lax attitude among many in Virginia, with a significant number of respondents saying that driving after using cannabis is fine.
For example, the survey found that 11% of respondents reported driving at least once a month after using marijuana. Additionally, nearly a third of respondents believe that people “tend to drive more slowly, drive more cautiously, and drive more safely” after using cannabis.
Just 26% of respondents think it’s “extremely” dangerous to drive after smoking marijuana — compared to 49% of respondents who said the same thing about someone who had three alcoholic drinks in the space of two hours.
dr James Hutchings, a toxicology program manager at the Virginia Department of Forensic Science, took a different view, saying THC can significantly affect motorists.
“When you think about driving, you have to think about what all the necessary requirements for safe driving are,” he said. “You think about coordination, the effects on your muscles and nerves, the ability to hold yourself up and steer, your reaction time – how quickly you can react to an external stimulus.”
THC, he said, can also affect anticipation, judgement, alertness, risk-taking, maintaining a safe distance, and “your ability to stay focused while driving down the long straight highway.”
But Virginia law enforcement has had a hard time arresting people for impaired driving while using marijuana. Because of how long THC resides in the body — and because different people can be affected differently — “there is no specific level that equates to ‘this person is affected,'” Hutchings said.
“The science doesn’t support setting a specific value,” he said. “To say, ‘This person with this number is definitely impaired,’ is something we couldn’t scientifically back up.”
Still, the Virginia Association of Commonwealth’s Attorneys is asking lawmakers to set a certain level of active THC in the blood above which driving in Virginia would be illegal.
“The fact that marijuana is legal shouldn’t stop anyone from endangering other people on the street,” Cathy Black, assistant prosecutor for the Williamsburg-James City County Commonwealth, told lawmakers. “So we would suggest playing it safe.”
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People shouldn’t take to the streets, Black claimed, if they have “active psychoactive drugs” in their system.
She proposed a legal threshold of 0.002 milligrams of THC per liter of blood. About 75% of the samples that police send to the state lab in marijuana impairment cases yield levels at this level or higher, Hutchings said.
But Black’s suggestion was dismissed by Sen. John Edwards, D-Roanoke, chairman of the Crime Commission, who said a specific blood THC level was arbitrary because he couldn’t determine how a driver was actually affected by the drug .
“If you’re in a wreck or something, maybe a judge could decide that,” Edwards said. “But I think you have to show that your driving has been impaired.
Statistics cited at the Nov. 16 meeting show that about one-third of fatal auto accidents in Virginia involved a disabled driver. But there is no good data on how many DUIs are due to drug use rather than alcohol.
Under current practice, the Department of Forensic Science does not test drugs unless someone has a blood alcohol content of less than 0.10. That should change in early 2023, when the Department of Forensic Science will test all samples in disabled driver cases for drugs.
Peter Dujardin, 757-247-4749, [email protected]