Even after its passage, the per se DUID standard included in Washington’s I-502 continues to drum up some incredible falsehoods. Now that it has passed, I am ready to work with everyone who wants to get this particular standard overturned, but I’m even more energized to beat back the entire concept of drug testing, not just for driving but also for employment. But it is not going to go well for our side until we can all get on the same page and be honest about this issue.
First off, we must all recognize the truth about how Washington’s I-502 per se DUID provision came to be. While I no longer work for NORML, I did during the entire campaign leading up to I-502, and I can tell you definitively that NORML has always opposed per se DUID standards and did everything in its power to prevent them from being included in I-502. From NORML.org at http://blog.norml.org/2012/02/24/normls-official-reply-to-patients-against-i-502/
We fully recognize the per se DUI marijuana provisions in I-502 are arbitrary, unnecessary, and unscientific, and we argued strongly with the sponsors for provisions that would require proof of actual impairment to be shown before one could be charged with a traffic safety offense. NORML, arguably more so than any other drug law reform organization, has a long track record of opposing the imposition of arbitrary and discriminatory per se traffic safety laws for responsible cannabis consumers. But we failed to persuade the sponsors of I-502, and now we must decide whether to support the initiative despite those provisions. We believe the overall impact of this proposal, if approved by voters this fall and enacted, will be overwhelmingly helpful to the vast majority of cannabis consumers in the state, and will eliminate tens of thousands of cannabis arrests each year. Thus, NORML’s Board of Directors voted unanimously (including the two members from WA) to endorse the initiative, while maintaining our opposition to per se DUID provisions in principal.
ACLU of Washington got a 5ng/mL per se DUID put into I-502, believing it was necessary to win. NORML opposed that and lobbied to have it removed. ACLU-WA ignored NORML and got legalization on the ballot with a per se standard. NORML had to choose “support legalization with per se DUID” or “oppose legalization with per se DUID” and chose the former. You can decide whether that was the right choice, but it most certainly wasn’t a “pro per se DUID” vote. At best, it was a “pro state legalized personal possession of marijuana with a per se DUID” vote.*
Next, we need to stop the hysterical wailing that “no patients will ever be able to drive!” and “thousands of patients are going to be criminals every time they drive!” For one thing, it’s not just patients, it’s everybody who consumes cannabis on a fairly regular basis. Arguing this as only affecting patients again diminishes credibility. Either smoking pot regularly gives you a tolerance or it does not – having cancer, AIDS, or chronic pain doesn’t affect the tolerance. The general public is already suspicious of the medical marijuana community; while over 80% support medical use, over 50% think current medical use isn’t all that medical. Arguing this as a patients’ issue plays right into the “there they go again with their medical marijuana ‘get out of jail free’ cards” sentiment on the right.
The problem with the hysterical wailing is nobody believes it – it’s Chicken Little. Of course patients will be able to drive, because they have been. It’s not like DUID is a brand new law; it’s always been illegal to drive with active THC in your bloodstream. Yet all these frequent cannabis consumers are saying they have a tolerance and the THC reading doesn’t determine their impairment. That leaves the mainstream audience in a state of cognitive dissonance. How is it that people who are completely unimpaired and a have a tolerance to THC are raising enough attention on the road for a cop to pull them over suspecting a drugged driver? Then the answer to that question requires:
- the patient has a broken taillight (the equipment excuse)
- the cop claims a bad lane change (the pretext for profiling excuse)
- the patient gets into an accident (the wreck excuse)
Each answer does little to convince the mainstream. If it’s the equipment excuse, what then causes the cop to want your blood? Equipment failures are not probable cause to arrest someone for DUID. Now the smell of marijuana alone isn’t probable cause, either; possession is legal. So it would have to be bloodshot eyes, unresponsiveness, failing a roadside sobriety test, and in any of these cases, most people will want you off the road. If it’s the profiling excuse, you still have all the probable cause issues of the equipment excuse and you look a little paranoid. If it’s the wreck excuse, now you have to argue it was all the other guys’ fault and your weed smoking had nothing to do with it. Good luck.
The process of prosecuting a drugged driver has only changed in one manner: the presence of >5ng/mL of active THC in your blood is now evidence enough to convict you of a DUID. And that means “Driving under the influence of drugs” not “under the impairment of drugs”, and certainly 5ng of drug in your blood means you’re under the influence of the drug. How much influence it has on your driving ability is another argument. But certainly, “no patients will ever be able to drive” is only true if:
- they drive
- they exhibit some behavior to attract police attention in traffic
- police suspect the driver is impaired by drugs or alcohol
- the driver fails a roadside sobriety test
- …but does not fail a roadside breathalyzer test for alcohol
- the police decide there is probable cause for an arrest for DUID
- the driver is taken in to a medical facility for a blood draw
- and after the 1-2 hours between being pulled over and getting to the medical facility then registers a blood sample of >5ng
- and then that evidence is presented to a district attorney who decides whether to file charges
- and then the driver’s defense lawyer fails to keep the blood draw out of evidence for misconduct or failure to follow procedure by the cop or the lab
- and the jury, having seen the dash-cam of the sobriety test, heard the officer’s testimony, and being instructed that a 5ng reading is proof of impairment, then decide unanimously to convict the driver of DUID.
I agree that per se DUID laws suck, are inaccurate, unscientific, and unnecessary. But when people like us make wild-ass claims like thousands of people are going to jail for driving sober, or all the former marijuana possession charges will now be DUIDs, or DUIDs will skyrocket, or patients will get DUIDs even four weeks after not toking (as if they’d abstain that long), or marijuana lawyers are conspiring to make business by subjecting sick people to DUIDs, we actually hurt the cause of getting these per se DUIDs eliminated by appearing irrational and unsympathetic.
When the patient advocates play these lines of reasoning, all the general public hears is “Oh, so the people who are already disabled who smoke pot all day every day are afraid they’ll get busted for driving high? Then it MUST be a good thing!” What some fail to recognize is most people have a fear of drug-impaired drivers on the road. When we tell them we don’t support per se’s and all we offer in return is “we’ll catch them for impairment like we already do!”, they hear “we’re not going to do anything to proactively catch all the new stoners that will be out there post-legalization.”
If we really want to fight this, don’t say “Oh no! This will catch drivers who are sober!” Turn it around. “Oh no! This WON’T catch drivers who are stoned!” Point out that per se doesn’t accomplish what they want, which is to proactively catch stoned drivers. Show how some drivers can load a bowl and get right behind the wheel and never drive in such a way that would attract police attention. “See, this guy’s at 100ng and cops would never know to pull him over!”
This way, we’ve displayed the same evidence (people over 5ng can drive just fine) but in a new frame. Instead of “oh no, patients will get caught!”, which is not a sympathetic issue to most people (“the super stoners wanna drive high!”), we’ve changed it to “oh no, this won’t catch the super stoners!”, a much more sympathetic issue to the mainstream. Plus, we look like we’re on their side, trying to catch the stoned drivers.
If I were lobbying in Colorado, I’d put forth a “No Smoldering Joint” law for driving to rebut the per se push. What people are afraid of is tokers getting blazed then driving, or worse, getting blazed while driving. So, like alcohol has a “no open containers” rule, we make a “no smoldering joint” rule – if there is any usable marijuana within the driver’s compartment, any burned marijuana or used paraphernalia, too, then it’s treated like we treat an open container of alcohol. Then, only if cops find the “smoldering joint” do we move on to blood tests, and then set the standard somewhere around 50ng-100ng, where it would be guaranteed to be indicative of toking within the past hour. Now you’ve neutered the opposition’s fear of stoned drivers and created a standard that is more scientifically accurate and reasonable for cannabis consumers to follow.
Otherwise – and mark my words – per se DUID is not going away and it will eventually pass. Give them something we like now or wait til the first big freeway wreck that can be tied to someone’s newly-legal recreational use and watch a standard we really hate get rammed through the legislature.
* Silly analogy: If the Green Bay Packers were in the Super Bowl and you were offering me, a lifelong Packer Backer, two 50-yard-line tickets, but only on the condition that I must wear a Denver Broncos jersey at the game, it would not mean “Russ Belville Supports the Denver Broncos!” It would mean Russ Belville made a pragmatic choice to achieve a greater good at the cost of a smaller evil.