Pubdate: Mon, 08 Sep 2014
Source: Las Vegas Review-Journal (NV)
Copyright: 2014 Las Vegas Review-Journal
Contact: http://www.reviewjournal.com/about/print/press/letterstoeditor.html
Website: http://www.lvrj.com/
Details: http://www.mapinc.org/media/233
Author: Arnold M. Knightly
Page: B1

DA WANTS CHANGE IN POT DUI

Wolfson Argues Current Law Is Too Vague to Determine Driver Impairment

Determining whether a motorist is under the influence of marijuana is 
much more difficult than determining whether a motorist is under the 
influence of alcohol.

Nevada's DUI marijuana laws need to be changed to reflect the 
impairment of the driver, not just a standard blood level, according 
to Clark County's top prosecutor, some lawmakers and pot advocates.

In Nevada, if there is enough THC - marijuana's active ingredient - 
in the blood system despite passing a field sobriety test, the driver 
is "per se" guilty of DUI of a controlled substance; per se meaning 
the driver is guilty without consideration of extraneous factors.

County District Attorney Steve Wolfson has joined a growing list of 
lawmakers, prosecutors and advocates saying state DUI marijuana law 
needs review at the 2015 Legislature to have some standard of 
impairment beyond a blood test.

"Everybody recognizes there needs to be a review of the law with 
regard to driving under the influence of marijuana," Wolfson said. 
"Right now, the law is vague with regard to whether a person has 
ingested marijuana and whether that by itself means the person is impaired."

Nevada is one of six states that have a per se limit for THC 
concentration in the blood, while 11 states have zero-tolerance laws 
for THC. In Nevada, the limit is 2 nanograms per milliliter of blood, 
or two parts per billion.

Medical marijuana's top advocate in Carson City, state Sen. Tick 
Segerblom, D-Las Vegas, is planning to lead the charge next year to 
get the state law changed. He would like to see Nevada's law 
patterned after California, which has no legal standard and relies on 
police judgment in the field to determine DUI marijuana. In court, 
the prosecutors

Research shows sobriety tests don't work for pot have the burden of 
proof but can use the blood test as evidence.

A state legislative panel chaired by Segerblom, who authored the 2013 
law establishing medical marijuana dispensaries, recommended by a 
9-to-3 vote in August that a bill draft request be modeled after 
California's law for the 2015 session. In that state, police must 
first determine that a driver might be impaired in the field, then 
request a blood test if they suspect that the driver is. If marijuana 
is found in a person's system, the prosecution must prove that the 
person was too impaired to drive safely.

Wolfson said his first concern with DUI is that someone is not safe 
on the road, and he has participated in discussions with 
stakeholders, legislators, law enforcement officers and private 
citizens on the marijuana impairment issue.

Las Vegas resident Jason McNamara will say he is far from a saint, 
including a conviction for possession of a marijuana before acquiring 
a medical marijuana card in 2009, but Easter Sunday 2013 was not a 
day he should have run afoul of the law.

According to McNamara, he was pulled over for speeding - which he 
admits he was - and passed the initial eyeball test administered for 
driving under the influence. It all fell apart from there.

A former construction worker with lumbar disk disease, sciatic nerve 
issues and restless leg syndrome, McNamara told the police officer he 
had a medical marijuana card but had not smoked since the night 
before about 16 hours earlier.

"The next two tests he applied to me consisted of using my lower back 
and legs, which are messed up," the 35-yearold said. "As I'm doing 
the third test of standing on one foot with the other foot extended 
out in front, my muscles start spasming out because they're bearing 
all the weight of my body."

McNamara was arrested for DUI, and his blood came back 7.7 nanograms 
per milliliter, well above Nevada's 2 nanograms threshold, leading 
him to plead no contest to misdemeanor DUI. But he contends he was 
not mentally or physically impaired.

"No drug lasts 16 hours except methamphetamine and heroin," said 
McNamara, whose plea triggered a parole violation and sent him back 
to state prison. He said he spent 35 days for a DUI when he believes 
he was not impaired.

Standard field sobriety tests have been the benchmark for detecting 
impaired drivers under the influence of alcohol and certain 
controlled substances. With alcohol, a level of 0.08 percent is the 
impairment level for new or heavy drinkers.

The effects of alcohol, unlike marijuana, have been researched and 
statistics have been analyzed for the past few decades. Recent 
studies show, however, that the field sobriety test does not transfer 
to effectively detecting marijuana impairment.

A 2012 study funded by the German Society against Alcohol, Drugs and 
Driving found that standard field sobriety tests were "mildly 
sensitive" to heavy users of marijuana with high levels of THC, 
"probably because many of the participants had developed behavioral 
tolerance" to pot-induced impairments.

The federal government seems to be on board with this line of thinking.

On July 31, Jeffrey Michael, associate administrator for research and 
program development at the National Highway Traffic Safety 
Administration, told a congressional subcommittee that trying to 
compare DUI alcohol and DUI marijuana is not possible.

"The available evidence does not support the development of an 
impairment threshold for THC which would be analogous to that of 
alcohol," Michael said.

Wolfson agrees that the key word in prosecuting any DUI is "impaired."

While alcohol dissipates out of your system much more quickly than 
marijuana, marijuana still can be detected in your system 24 hours 
later, Wolfson said. "So much of it depends on the person and their 
tolerance level and the strain of marijuana. If you smoke marijuana 
daily, you're going to have higher levels of marijuana."

Wolfson said his office has been offering certain penalty reductions 
on felony and misdemeanor DUI marijuana cases because under the 
current law, it is difficult to prove impairment.

"A DUI might go to a reckless driving if the only thing we can show 
is that they had marijuana in their system without other independent 
proofs of impairment," Wolfson said.

The Metropolitan Police Department does not track DUI marijuana as a 
separate category, just arresting the driver for a DUI controlled 
substance, so it is not known how many people are arrested on that charge.

Henderson Police Chief Patrick Moers said any change in the DUI 
marijuana law will not change enforcement.

"We don't stop people and check them for marijuana; we stop them 
because their driving is poor," Moers said.

"We have drug enforcement officers who are trained to recognize signs 
of someone under the influence. We're just worried about drivers' 
actions and their ability to drive safely on the road."

Moers said just because someone has a prescription medication doesn't 
mean they can be on the road if it impairs driving.

"They're legal, but we have people driving around under the influence 
of prescription medication all the time," Moers said.

Review-Journal writer David Ferrara contributed to this report.
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