Marijuana Plants

March 2017

How recreational marijuana is challenging drugged driving enforcement

Although most of last November’s U.S. election focus was on the presidential race, a less-publicized shift is likely to have significant repercussions for several states in the near future: legalized recreational marijuana.

Colorado became the first state to legalize the drug in 2012, and since then, Washington, Oregon, the District of Columbia and Alaska have voted for legalization. This past November, four more states—California, Massachusetts, Nevada and Maine—also legalized recreational use. One state, Arizona, had legalization on the ballot, but voters opted against it.

When MOVE first covered this issue in 2014, Colorado was still adjusting to the law and determining the most effective ways to provide training for law enforcement and implement public education efforts about the dangers of drugged driving.

With two more years of experience, both Colorado and Washington have numerous lessons to share with those states that have just voted to legalize. The challenges both states have faced in the past few years are likely to be felt across any jurisdiction that has to deal with recreational marijuana use—and that includes states that border one where marijuana is legal.

“Drugged driving is a national issue,” says Brian Ursino, director of Law Enforcement at AAMVA. “It’s one that we need to address in terms of standardizing testing, enforcement, training and other strategies. In many ways, where we are with marijuana now is where we were with alcohol 30 years ago.”

The Pacific Institute for Research and Evaluation conducted a voluntary roadside survey both before and after legalization in both Colorado and Washington, providing some insight into the effects of the shift. Since legalization, Colorado’s traffic deaths have increased by 48 percent. Marijuana-related ER visits have surged 49 percent, and calls to poison control are up 100 percent since before legalization. In Washington, legalized recreational marijuana began in July 2014. Prior to that date, about 14 percent of drivers tested positive for marijuana use, but now that number has jumped to 21 percent.

Major Challenges

As states like Colorado and Washington have adjusted to the new normal, the challenges they’ve faced are instructive for other states that have more recently legalized marijuana use, or those considering legalization in the future.

For example, there isn’t a national standard for what constitutes ‘being high.’ Some states have set 5 nanograms of Delta-9 THC (the drug’s intoxicating ingredient) in a driver’s system as the presumptive level of impairment, but many believe there’s not enough science to validate that number. Also, Washington’s fatal crash data reveals there have been many marijuana-involved crashes in which drivers had levels well below 5 nanograms.

There simply isn’t enough data right now to create a national standard like the one used for determining alcohol overconsumption, Ursino says. Although Colorado has the most data collection at this point—and plans to release some major numbers in 2017—there’s still a struggle with tracking data effectively.

Data can get even trickier when other drugs and alcohol are factored into the equation—and it’s increasingly prevalent that they are, according to Erin Holmes, director of Traffic Safety at the Foundation for Advancing Alcohol Responsibility.

Referred to as ‘polysubstance’ situations, these are incidents in which a driver has ingested marijuana and also had alcohol or other drugs like opioids. The biggest problem, Holmes says, is that each individual will metabolize multiple substances in different ways. Also, it’s common for one substance to heighten the effects of another.

“When you have alcohol and marijuana, it’s not one plus one equals two,” says Holmes. “It might enhance the effects of both, so now you’re dealing with one plus one equals three. And people taking these substances might not know that.”

Whether there are polysubstance issues involved or just marijuana, either situation brings up another significant challenge: adequate testing. THC can only be measured through a blood draw, not through a breathalyzer. In any state, getting blood requires a court order—and that takes time, especially in the middle of the night when a trooper might have pulled over someone who seems impaired.

As that process unfolds, THC is dissipating rapidly. By the time a suspected user is brought to the hospital for a blood draw, it’s likely that it’s hours after the traffic stop. By that time, THC levels will be significantly lower and possibly at a permissible level, notes Major Steve Garcia, who heads the Training Services Branch of the Colorado State Patrol.

Steps Forward

Although recreational marijuana use creates all of those challenges for law enforcement, regulators, legislators and motor vehicle administrators, there has been progress made as well.

In Colorado, significant resources are being put into assessing three different devices that would use oral fluid—also known as spit—rather than blood for determining a person’s THC level. Garcia would like to see a breathalyzer/oral fluid combination device, since people provide a certain level of spit when using a breathalyzer anyway.

Colorado is currently testing the devices by comparing oral fluid results with subsequent blood draw results. With enough data, law enforcement would be able to present the case for new devices to the legislature. From there, a law change could make oral fluid results admissible in court, Garcia notes.

“Best of all, that may speed up the process in other states,” he adds. “Ideally, getting to a national standard would be helpful as more and more states consider legalization.”

Also looking to shorten the time frame for getting blood draws, Washington is piloting a program for getting warrants electronically, and initial tests in Spokane are going well, says Chief John Batiste of the Washington State Patrol.

“We’re cutting time out of the process, and that’s incredibly important for getting an accurate reading of how impaired a driver might be at the time of the traffic stop,” he says. The agency is trying to obtain grant funds that will allow law enforcement to roll out electronic warrants statewide.

The other strategy that’s gaining traction for handling drugged driving is training—specifically, more emphasis on Advanced Roadside Impaired Driving Enforcement (ARIDE), a program developed by the National Highway Traffic Safety Administration (NHTSA) with input from groups like the International Association of Chiefs of Police. ARIDE was created to address the intermediate gap in training between the Standardized Field Sobriety Testing and the far more advanced Drug Evaluation and Classification program.

Colorado trains every trooper in ARIDE, Garcia says, and has made strides toward making the training a standard. “We want every single officer to determine whether or not a person is under the influence of drugs as well as alcohol,” he notes. With marijuana, that type of determination can be challenging, since a user could be less likely to exhibit classic signs of intoxication, which makes training even more vital.

Shared Lessons

With an awareness of what’s working, what may work in the future and what’s still a challenge, states that have recently legalized recreational marijuana use can begin to face the situation more effectively.

Batiste adds that newly legalized states should look for the same level of testing, laws and legislative support as they’ve seen with alcohol. “There needs to be a high level of communication between a state legislature and law enforcement on this issue,” he advises.

Rolling out training now—rather than when marijuana is available—is another major step worth taking, says Holmes. Training like ARIDE can prepare officers and others in advance. For example, according to Chief James Epperson of the California Highway Patrol, legalization there was immediate but the regulations for use are not required to be adopted until Jan. 1, 2018. But that doesn’t mean officers will be waiting until that date to begin training about drugged driving identification and apprehension.

Fortunately, California’s statute articulates specific requirements for training and research efforts, Epperson says. This supplies the funds necessary for law enforcement and data scientists to begin working before that crucial start date.

Another step that states may want to consider is to engage in discussions about public safety with those who are selling recreational marijuana, suggests Garcia. Similar to talking with bar owners about intoxicated patrons, purveyors of smokable and edible marijuana should be informed about how they can prevent drugged driving, he says.

“Nobody wants more crashes and fatalities, and that includes the people [growing] and selling marijuana,” says Garcia. “For the first six months of legalization, we fought the change. And, honestly, we lost time because of that. Because when you accept that it’s happening, you can open up a dialogue with industry and treat them like a partner. We all have to work together on this.”