Requiem for an unjust law

Nevada’s arbitrary rules for pot DUI busts ended this month

PHOTO ILLUSTRATION/FRANK X. MULLEN: Prior to July 1, a Nevada driver could be convicted of being driving under the influence of cannabis absent any evidence of impairment.

Steve, a medical marijuana patient from Reno, broke out in a sweat when a Nevada Highway Patrol officer pulled him over on a cold night in April two years ago.

The 64-year-old military veteran and machinist, who uses cannabis to treat post-traumatic stress disorder and did not want his last name published, imbibes about 25 milligrams of eatable cannabis several hours before bedtime. On any given day, when the intoxicating effects of the drug have long worn off, the chemicals in marijuana are still swimming around his system and tucked away in his fat cells. Even if he were to abstain from pot completely, it can be weeks or months before the traces of the drug vanish from his bloodstream.

“Every day, I drive around with probably enough traces of pot in my system to get busted for DUI (under the old law),” Steve said. “I’m not high, don’t feel any effects at all, but (the statute) had nothing to do with that… It’s numbers that someone made up just to have something to put in the law.”

He is right, but as of July 1, that law is history.

The ‘per se’ provision

This year, the Nevada Legislature changed the state’s driving-under-the-influence statute to eliminate the “per se” standard for determining whether a driver is impaired by cannabis. Now, police must also provide evidence of impairment if they want to charge a driver with operating a vehicle under the influence of marijuana.

The legal change was a long time in coming. Although evidence that the standard was arbitrary and unscientific has been around for decades, politics and prejudice stood in the way of reforming the statute. In the interim, some people went to prison based on measurements that experts agreed didn’t make any sense.

Some law enforcement officials who testified this year during the legislative hearings for Assembly Bill-400, the measure that changed the law, said that getting rid of the blood-test standards would inhibit their ability to prosecute people for driving while under the influence of marijuana. “If passed, it would not be fair to the other driving community we share the roads with,” said Dwaine McCuistion, a Metropolitan Police Department traffic detective at a hearing on AB-400 in March.

Proponents argued that evidence, not an arbitrary standard, should be required for a DUI conviction related to an accident caused a death or serious injuries, which carries a mandatory sentence of two to up to 20 years in prison.

Mandatory prison terms

Others in the legal community aren’t mourning the repeal of the old system.

“It was a chickenshit standard,” said Calvin R.X. Dunlap, a Reno lawyer, and former Washoe County district attorney. He said the law often came into play in accidents that resulted in serious injuries or death. If a driver’s blood tests revealed prohibited levels of THC, the chemical in cannabis that causes a user to feel high, or the presence of a metabolite of marijuana, a chemical formed when the body breaks down the constituents of the weed, they were automatically considered impaired.

One high-profile case in Reno involved a driver who had pulled into the path of a Reno police officer  who was speeding on his way to an accident call. Officer Michael Robert Scofield, 54, died on Sept. 26, 2002, after his motorcycle slammed into the side of a car driven by Anna Marie Jackson, then 24. Jackson had made a turn on to Mill Street and said she didn’t see Scofield approaching until she was right in front of him.

At the time, Nevada’s limit for determining impairment was 2 nanograms of THC or 5 nanograms of the inert metabolite in blood. A Washoe County jury in 2004 convicted Jackson of DUI based on having 18 grams of the metabolite in her bloodstream, but the panel determined that the evidence did not show she was over the 2 nanogram limit for THC.

Jackson, who had admitted smoking marijuana the day before the accident but not the day of the noon-time crash, was sentenced to two years in prison, the minimum required by the law. She has since served her sentence.

SOURCE/RENO GAZETTE-JOURNAL: A jury in 2004 convicted Anna Marie Jackson, who had marijuana metabolite detected in her blood after the accident, of DUI under a standard that was repealed by the Legislature this year. She was sentenced in 2005 to two years in prison, the minimum required by law. Then-District Attorney Dick Gammick thought her sentence should have been longer, because the victim in the case was a police officer.

Slow changes to the law

Dunlap represented Scofield’s widow in a subsequent civil suit against a property owner. That business previously had been cited for untrimmed trees in the area that allegedly could block a driver’s view of oncoming traffic. He said there were many factors involved in the tragedy, but marijuana use wasn’t one of them.

“What (Jackson) had in her system was marijuana metabolites, not THC,” Dunlap said. “There was nothing that turned up in her blood that did, or could have, affected her. That was one of the worst cases I’ve seen in which non-criminal activity was punished.”

The debate over how to legally determine THC intoxication in drivers heated up after 2000, when the state legalized the medical use of marijuana. By 2017, when recreational use of the weed became legal in Nevada, the Legislature eliminated urine tests – which revealed the presence of metabolites — but set the 2-nanogram limit on THC and the 5-nanogram limit for blood tests as proof of impairment.

No standard for pot

For alcohol, there is a clear, national standard. If a driver’s blood alcohol content is 0.08 percent or higher, the person is considered too impaired to drive safely. That limit is supported by mountains of research. That’s not the case with cannabis.

Nevada’s blood-test standards were even lower than the ones used by the federal Department of Transportation. They became law despite the lack of scientific evidence about how much marijuana residue in a person’s system constitutes impairment. Marijuana is fat soluble and how long its chemicals stay in a body depends on an individual’s body composition, research shows. Blood tests can detect those chemicals days or weeks after marijuana has been ingested, even though the person was perfectly sober at the time of a test.

But until this year, Nevada lawmakers hung on to those standards.

Easy convictions

Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, said Nevada’s DUI laws and those in other states that allow convictions based on set limits of chemicals in blood — or any trace of marijuana in a person’s system at all — were initially passed years ago without debate or expert testimony. Because the standards provided law enforcement with an easy way to charge someone with impaired driving, reform has been slow in coming, he said.

“Experts were completely left out of the discussion when those laws were (first) passed,” he said. “A lot of these policies reflect the morays and legislative intent of a very different time… It’s only decades after their enactment that lawmakers are finally starting to revisit these policies and finding that they never made any sense in the first place.”

Now, he said, “there’s recognition that those policies, whether a per se limit or zero tolerance, are arbitrary, unscientific and criminalize individuals who present no legitimate traffic safety threat.”

The change in Nevada law doesn’t mean it’s suddenly legal to get baked and go for a joyride.

Evidence now required

“Everyone opposes the idea of anybody operating a motor vehicle, regardless of whether they are under the influence of any legal substance or an illicit substance,” said Armentano, who testified in favor of AB-400. “(But) these laws as written are divorced from demonstrable evidence of impairment by their very design.”

The existence of a black-and-white standard made it easy for prosecutors to win a case absent any evidence that a driver was impaired, he said.

“(AB-400) would really hinder our DUI marijuana prosecutions. We don’t have the ability to make all the physical observations and perform all the physical tests to prove a DUI beyond a reasonable doubt in the absence of blood results.”

– John Jones, Nevada District Attorneys Association, in testimony about the bill in March.

“These laws were written explicitly so that there would be no heavy lifting involved, so that there would be no distinction between impaired and unimpaired drivers,” Armentano said. “That is the intent… It was really a fishing expedition to go after individuals who may or may not choose to use marijuana in the privacy of their own home and to try to influence their behavior by making them fear, legitimately, that they would be violating traffic safety laws every time they left home and got behind the wheel.”

Law enforcement, he said, needs specific training and tools to identify impaired drivers rather than relying upon standards that have no grounding in science. “That doesn’t sound like a heavy lift if we care about traffic safety,” he said.

“(Law enforcement) can still take your blood. They just can’t rely on it as conclusive proof of your guilt.” 

— Assemblyman Steve Yeager, D-Las Vegas, sponsor of AB-400.

Accidents and legalization

Accident statistics from states that have legalized medical and/or recreational use of cannabis don’t show a specific correlation with increased serious accidents.

“We know this because when we look at states’ traffic-safety patterns post legalization and compare with states that haven’t changed their marijuana laws, we generally see that those trends are similar,” Armentano said. “There’s a number of factors that influence traffic safety and we see fatalities ebb and flow over time. But legalizing marijuana isn’t driving that train; it’s not influencing those changes significantly, if at all. Even among states with adult use (of cannabis) the data is all over the map.”

In an insurance industry study of injury and fatal crashes in states with legal marijuana released last month, he noted, Colorado got a lot of attention due to a 17.5 percent increase in injury-related accidents. “At the same time, Nevada, Washington and California trended down, yet all of those states have the same policy… These are divergent trends; it’s not fair or accurate to say that marijuana influenced any of those trends,” Armentano said.

SOURCE: Insurance Institute for Highway Safety/ Highway Data Loss Institute, June 2021.

‘Zero tolerance’ in 9 states

Now that Nevada has abandoned the blood-test limits, just five states are left with similar standards in their DUI statutes. Nine other states have “zero tolerance” policies on their books, meaning that any detectable amount of marijuana chemicals in urine or blood results in a charge of driving while impaired.

“Even some of those states make exceptions for medical marijuana,” Armentano said.

Steve, the Reno machinist who feared getting cited for DUI under the old law, said he is relived that the blood-test standards were repealed. But he said because cannabis remains illegal at the federal level, he doesn’t want either his employer or his doctors at the Veterans Administration to know he uses cannabis.

His traffic stop two years ago resulted in a warning for not having his registration renewal sticker displayed on his license plate, he said. But if he had been involved in an accident at any time over the last 10 years, he noted, he could have automatically been cited — and convicted — for DUI based on a blood test alone.

“I don’t have to worry about that (now),” he said. “… I guess it’s going to be awhile before all the laws catch up with what’s been happening in society.”

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2 Comments

  1. All law enforcement really needed was to say they smelled marijuana on you and force a search of ones vehicle, property, or person and dirty cops plant evidence all the time. I’m from out of state, but maybe I will now visit Nevada and medicate freely.

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