Marijuana Road Sign MOVEmag

october 2016

five states set to vote on recreational marijuana

Setting aside the sensationalism surrounding the 2016 presidential election, another issue is causing a frenzy at the state level ahead of the November 8th general elections–recreational marijuana legalization. Voters in five states will cast their ballots on initiatives deciding whether to give the green light to recreational use. If all jurisdictions approve their measures, the total number of jurisdictions allowing such use will total ten. Law enforcement must prepare for an increase in drug impaired driving and strengthen efforts to enforce impaired driving laws to prevent a rise in traffic fatalities.

Colorado became the first state to legalize recreational marijuana use on November 6, 2012. Washington, Oregon, the District of Columbia, and Alaska followed suit. On November 8th, Arizona, California, Maine, Massachusetts, and Nevada voters will decide whether to allow recreational use in their respective states. The measures entail, generally, allowing adults over the age of 21 to possess and consume marijuana; permitting the growing of a certain number of marijuana plants for personal use; levying taxes on the sale of marijuana; permitting and regulating marijuana distributors; and establishing a state regulatory board to oversee the industry. Regardless of the outcome in each state, the federal government still does not recognize legal marijuana use or sale.

Legalized recreational use is still a new phenomenon, but recent studies have evidenced cause for concern with increased drugged driving linked to legalized marijuana consumption. The AAA Foundation for Traffic Safety released a study in May 2016 examining the presence of marijuana in fatal crashes in Washington from 2010–2014 and the rate of change after Initiative 502, which legalized recreational marijuana on December 6, 2012. The study found the percentage of drivers involved in fatal crashes who recently used marijuana more than doubled from eight to 17 percent between 2013 and 2014.

Furthermore, the Governors Highway Safety Association (GHSA) also released a study in September 2015 highlighting Washington impaired driving statistics. The report cites the proportion of impaired driving cases that tested positive for marijuana averaged 19.1 percent from 2009–2012, then increased to 24.9 percent in 2013, 28 percent in 2014 and 33 percent in preliminary data from the first four months of 2015. Both the AAA and GHSA studies indicate a connection between the legalization of marijuana and an increase in crash fatalities and the presence of marijuana consumption.

While states attempt to curb impaired driving from marijuana use, policymakers and law enforcement officials do encounter challenges with impairment detection and enforcement.  A primary issue is the arbitrariness of per se laws. While a few states have established per se laws for Delta-9-tetrahydrocannabinol (THC), the main cognitive and motor function impairing component in marijuana, the limits are not based on scientific consensus. The AAA Foundation for Traffic Safety argues in another study released in May 2016 per se laws are arbitrary since people with varying Delta-9-THC levels react differently. Alcohol, on the other hand, has scientifically been proven to affect individuals on a consistently measurable basis.

Brian Ursino, AAMVA’s Director of Law Enforcement, cites poly-use, or using a combination of drugs or drugs and alcohol, as another complication in detecting impaired driving. In many cases, poly-use will lead to varying and inequivalent levels of impairment, which makes it difficult to set a standard for impairment measurement. Ursino also points to the challenge of getting an accurate impairment reading from a suspected impaired driver before the Delta-9-THC dissipates (usually within 4-hours of ingestion). Depending on circumstances present, a search warrant is often needed to draw blood for testing, and the compound may fall below per se levels in an individual before a warrant is issued. Both AAA reports touch upon this point as well. AAA per se limits map.

Law enforcement officials in Washington and other jurisdictions that have legalized recreational marijuana have acted diligently to combat an anticipated rise in impaired driving and to overcome the challenges posed by marijuana impairment on the roads. Ursino continued to discuss some of these efforts, including attempting to increase Drug Recognition Expert (DRE) numbers in law enforcement  to detect impairment, determine which drugs are at play, and decide the level of impairment; expediting the process needed to obtain a search warrant to take a blood sample for an impairment test before the Delta-9-THC fades below threshold levels; and educating the public to create a “cultural paradigm shift” away from the acceptance of impaired driving from marijuana use. Ursino elaborates on this last point, “Much of the public thinks that when the government says that marijuana is legal to use, that it’s okay to use and drive. There has to be a mental paradigm shift away from the perception that using marijuana and driving in combination is okay.”

With this general election set to bring out a record number of voters, a large number will have their input in the legalization of recreational marijuana. The results will prove immense for traffic safety. If a state such as California with approximately 25 million drivers on the road approves Proposition 64, the state’s recreational marijuana initiative, the number of motorists with the option to legally use marijuana more than doubles nationwide. A state as influential as California could serve as a catalyst for other jurisdictions to launch initiatives of their own. As this trend steadily grows, law enforcement and policymakers must be aware of the provocative trends from jurisdictions such as Washington that have already passed laws, the challenges marijuana detection poses, and how law enforcement is handling this issue.