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I’m sorry I was right about this: Give law enforcement officers a ‘bright line,’ and they are definitely going to use it.

When Washington state voters last year approved the state’s marijuana legalization law, Initiative 502, they didn’t just legalize an ounce for adults, and state stores to sell it to them. They also voted into law a strict law against driving under the influence of cannabis, written into the language of I-502.

Law enforcement, themselves, now admit they are giving a lot more blood tests for marijuana since I-502 passed — and it’s no wonder, because it gave them a “bright line” (5 nanograms per milliliter of blood, 5 ng/ml) over which drivers are, per se, guilty of “driving under the influence” of cannabis.

Never mind that 5 ng/ml is not associated with impairment, according to science.

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.

That’s why it is really unfortunate that marijuana blood tests don’t measure impairment at all, but simply the level of active THC in the blood. Many heavy cannabis users, such as medical marijuana patients, wake up, unimpaired, in the morning, with blood levels in excess of 5 ng/ml, thus are never technically legal to drive.

I-502 apologists last fall advanced the theory that officers wouldn’t really enforce the marijuana DUI portion of the law, unless people were “really impaired.” (It’s never a good idea to assume cops won’t enforce the law.)

These new Washington State Patrol numbers put the lie to that idea. Almost half of the drivers who were forced into a blood draw by troopers and tested positive for THC were under even the paltry 5 ng/ml limit.

‘We’re Testing Blood That We Didn’t Test Before’

“More drivers have been testing positive for marijuana” since Washington legalized last year, according to the State Patrol’s new figures, reports Gene Johnson at The Associated Press.

But that doesn’t mean that legalization caused a sudden rash of driving while high, according to WSP spokesman Bob Calkins.

Troopers are now “looking harder” for drivers who have been smoking marijuana. “We’re testing blood that we didn’t test before,” Calkins said.

In the first six months of 2013, 745 drivers tested positive for marijuana, according to the Washington State Patrol crime lab. Since there are typically around 1,000 positive pot tests on drivers in a full year, that means cannabis DUI tests have gone up close to 50 percent.

But since the overall number of impaired driving cases handled by the Patrol doesn’t appear to have risen this year — it looks to be on track to hit the rough annual average of 20,000 — that could mean that some drivers are using marijuana instead of alcohol before getting behind the wheel. That, of course, is a lot less dangerous.

The WSP’s crime lab ran the numbers this month and turned them over to the federal government. This was in the wake of a Department of Justice announcement in August that the feds will not sue to block implementation of marijuana legalization in Washington and Colorado, as long as the states meet eight federal “law enforcement goals” — including combatting driving while high.

Driving under the influence of marijuana is generally charged as a gross misdemeanor, punishable by up to a year in jail. Offenders must serve at least one day in jail for a first offense.

Of the 745 drivers who tested positive for marijuana in the first six months of 2013, a slight majority — 420 (yes, that’s really the number) — tested above the legal limit of 5 ng/ml.

In 2011, 506 drivers tested above 5 nanograms, in 2012, 609 did.

Alison Holcomb, the American Civil Liberties Union lawyer who wrote I-502, admitted the possibility that “certain demographics” are being unfairly targetd for marijuana blood tests, and said she’d be “keeping tabs” on the situation.


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