There has been a lot of talk lately about marijuana, medical marijuana, and the ways law enforcement will monitor and test for driving under the influence of the drug. We’ve asked Kevin O’Brien, Jr., our Director of Legal Services, to give his honest perspective.

I recently read an article about how there are increased efforts being made for new ways of testing for marijuana that don’t involve drawing blood from an operator of a motor vehicle. This may initially sound like a good idea to most people as marijuana has been demonized for years by the government as some sort of evil drug that is going to corrupt all of America’s youth. However with recent legalization in many states, that view seems to be shifting in a hurry amongst the American citizenry.

Still though it must be a good idea to have new ways of testing for marijuana effects that can be done on roadsides, right? I don’t think we can jump to that conclusion quite so quickly. Upon reading the article I was immediately concerned for several reasons. 1) Why do we need this new testing? 2) Why is this being so strongly supported by American law enforcement? 3) How can we ensure that this type of testing is accurate?

Marijuana can get people high, right? That is why people smoke it, right? So it must be bad to drive under the influence of marijuana? Not so fast, a study by the National Highway Safety Traffic Administration (NHSTA) says that smoking marijuana had no “significant increased risk of crash involvement.” NHSTA is one of the biggest organizations in the country that has been training and testing against drunk driving for decades. When NHSTA says that smoking marijuana does not cause any increase in crashes, it is safe to assume their evidence is intact and valid. I believe if they had any argument to make against smoking marijuana and driving they would have certainly done so. This opinion is based on years of experience and familiarity with several of their other studies involving alcohol that conclude sober driving is the only way to safely operate a motor vehicle.

So that is it: driving under the influence of marijuana should be legal! As radical a statement as that may sound like, I believe so. I need to get back in the real world though because as far as I know every state in the country still has laws against driving under the influence of marijuana. Why? For one they still promote the agenda that marijuana is evil and illegal in the majority of the states. Alcohol has been proven time and time again to cause significant increases in accidents, even after moderate use. Yet New York has a lower threshold for a criminal conviction for driving after using marijuana than it does for alcohol. If that sounds arbitrary and dangerous to you as a citizen, you’re right.

Beer and liquor companies still advertise in every foreseeable location, including Times Square, billboards on the roadways, and every major sporting event in the country. Try attending a political event without being offered a cocktail; tell me when you find one. So that might be one reason why marijuana still gets a bad rap on the roadway. It’s been illegal so long that its manufacturers haven’t been able to give enough money to the right people who pass laws.

What about my next question: why is law enforcement supporting this so strongly? There is a certain amount of job security in making sure that there are still easy arrests, and also keeping people fearful of marijuana and its dangers (whether those dangers are real or otherwise). Plus, pot smokers still have a bad reputation because marijuana has been demonized for so long. If marijuana becomes legal in the United States or even the majority of states, a new problem arrises. In this country we love putting people, especially minorities in jail, which we’ve done for years for simply possessing pot. If marijuana is legal we need to make sure that the prisons are still full, that overtime still gets paid to officers, and that local courts and municipalities still get fine and surcharge money that they’ve come to rely on. Without these easy arrests we may have to focus on real crimes that have actual victims.

Please don’t read the above and take it as anti-law enforcement. Law enforcement has a vital role in our society and when they do their jobs honestly and with good intentions they can be some of the biggest heroes this country has. However, many have been just as indoctrinated against marijuana as the rest of us, probably more so. I believe that is where the real support from them could come from. I believe as a whole, law enforcement hasn’t thought critically about this issue and whether or not it’s really something they should be actively pursuing to legitimately benefit society.

I believe roadside testing for marijuana is still coming. So how can we assure that the testing is accurate? My opinion is that we can’t. Putting a number on it like we have with alcohol won’t work for all the same reasons it hasn’t worked for alcohol and more. First alcohol has the arbitrary number of .08, which is a number that can mean so many different things depending on the person. A person’s drinking habits, physical attributes, and various other environmental factors can change dramatically how a person reacts physically and mentally at a .08 BAC. Yet the government has told us that a .08 BAC is a magic number where people become incapable of driving in a safe fashion. If the government does the same thing with marijuana, we will have even more trouble.

Measurable elements from marijuana are stored in the body’s fat cells. Thus depending on the body fat percentage a person has, they may store more than the slimmer person walking down the street smoking the same amount or even more marijuana. Additionally, like alcohol, the more regularly a person smokes marijuana the less it tends to affect him or her. For example a heavier person who smokes on a daily basis will be affected less but will measure at a higher number than a thinner person smoking for the first time. Even with an accurate measurement the person who is less culpable would measure higher with an accurate measurement.

Another concern with getting an accurate reading without blood is that as of right now we are looking at it in the same way we looked at alcohol. We want something that a driver can blow into – thus far that method has proven unsuccessful. Researchers are potentially looking to a person’s sweat as a way to measure the effects that marijuana is having on an individual. Even without the above listed problems, each person is biologically different. It will be very difficult to account for those differences in what amounts to a waste product that is linked with how a body maintains its temperature. However, the citizenry runs the very real risk of being indoctrinated in the same way that they have been with the breathalyzer. Most people believe that a breath test can accurately measure what’s in a person’s blood without ever being told how that is possible. If we don’t think critically and demand evidence, the exact same thing will happen with whatever roadside marijuana test they come up with.

I’m not a scientist, but I think there is a very real risk here in continuing to try to find new and cheaper ways to measure marijuana in a driver. There is no evidence that marijuana even causes an increase in crashes. In fact NHTSA says there is evidence to the contrary. We are presently arresting and incarcerating people for this crime. The question is, do we even care if the technology is accurate? The answer is most likely no, unfortunately. Our government is still prosecuting driving under the influence of marijuana, even though it knows, based on its own study, that it has no impact on the safety of the roadways.

The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.