Stringent Cutoff Point Still Ensnares Many Unimpaired Cannabis Users
The debate over restrictive Washington state marijuana “legalization” law Initiative 502’s stringent “driving under the influence” limits for cannabis has been reignited by the Washington State Patrol’s recent admission that it now tests more drivers for THC blood levels since passage of the law.
Troopers admit that I-502’s “bright line” of five nanograms per milliliter (5 ng/ml) is the reason they are now testing more drivers than ever before for blood THC, using invasive blood draws. You see, voters didn’t just approve a “legalization” law when they approved 502 — they also voted in a strict law against driving under the influence of cannabis.
Troopers are now “looking harder” for drivers who have been smoking marijuana. “We’re testing blood that we didn’t test before,” WSP spokesperson Bob Calkins said.
According to most scientists and medical marijuana patient advocates, the limit 5 ng/ml is arbitrary and unsupported scientifically, and can result in DUI convictions for many patients and others, even when they’re unimpaired. The reason for this is that even though the 5 ng/ml limit applies to active THC, many patients and others who use cannabis daily — especially heavy users — wake up in the morning, unimpaired, over the 5 ng limit.
Until the passage of 502, officers had to prove actual impairment if a driver fought his or her DUI marijuana case in court. They don’t anymore; now they just have to prove your blood THC level is 5 ng/ml or more. When you give law enforcement a shiny new tool like that, don’t ever doubt it will be utilized.
Toke Signals had a revealing talk on this subject with Michael Knodt, editor in chief of Hanf Journal, Germany’s biggest hemp magazine.
It turns out the Germans had the good sense to exclude patients from their marijuana DUI limits. Even so, lots of recreational cannabis users are being caught up by the law, even when they don’t drive impaired.
“I follow the debate about I-502 with much interest, because we have a similar problem in Germany,” Knodt told us from Berlin. “It is a lot worse here (our cutoff level is 1 ng/ml), but if you are a patient — we only have a few in Germany because it is hard to get a prescription, which has to be confirmed by the federal health office — the cutoff level does not count.”
With patients, according to Knodt, the police have to prove that they were actually impaired while driving, not rely on some artificial cutoff point.
It should be noted that this was the law in Washington state for everyone, until I-502 — that impairment must be proved in court in contested marijuana DUI cases. Since 502 passed, patients, along with everyone else, lost that protection, since there is no patient exclusion written into the measure — a huge and unfortunate oversight.
“I do not want to bore you with the details of the German traffic laws,” Knodt told us, “but there are two interesting things I miss in your debate.”
First of all, the cut-off level. Five nanograms is simply wrong, according to Knodt.
“The 5-nanogram level is wrong, no doubt,” he told us. “As activists, we try to make the public aware of the fact that a lot of Germans lose their licenses although they never drove stoned. Our liberal experts here want a cutoff level which is aroudn 10 ng for recreational users.“Their argument is, if you smoke and are affected your level is about 30 to 50 ng; if you are under 20 ng you are normally able to drive,” Knodt said. “To be on the safe side, they suggest 10 ng.
“That means you’d have to wait a few hours after smoking, but not for one or more days,” Knodt pointed out.
“So why doesn’t anybody discuss a higher cutoff level which is more realistic?” Knodt asked. “The experts and studies are evident.”
“Patients and recreational users should be treated differently than each other due to their relative THC tolerance,” Knodt said. “For patients we have other rules.
“As soon as it is considered as a medicine, there is no cutoff level,” Knodt told us. “You are simply not allowed to drive ‘under the direct influence.’ ”
“Most patients have developed a tolerance,” Knodt pointed out. “They do not get stoned the same way recreational users do.
According to Knodt, patients also have the choice to go to an independent medical institute, medicate in front of the doctor and prove that they can drive under the influence of cannabis.
“A patient and friend of mine was able to prove that he can drive after having smoked two big joints (containing 2 grams of hydro medicine), because he cannot drive without medication (Tourette’s),” Knodt told Toke Signals.
Such situations, however, are uncommon in Germany, because there are only about 100 medical herbal cannabis patients in a country of 80 million people (there are about another 400-500 who have Marinol prescriptions).
Even though it’s not discussed in the media like it is here in the United States, those few patients in Germany managed to retain their driving rights — unlike many in Washington since I-502 passed. But the arbitrary 1 ng/ml cutoff level in Germany is still a huge thorn in the side of recreational marijuana users.
“We still have the stupid cutoff level for recreational users,” Knodt said, “but as a patient you can still keep your license if you know what to do.”