While many states’ criminal codes treat marijuana as an increasingly trivial concern, legislators in some states have been piling on drugged driving laws that target marijuana users long after any intoxicating effect has subsided. Oklahoma is the latest state to adopt a law that allows prosecution of unimpaired drivers on DUI charges when drug tests show evidence of prior marijuana use.
As cases generated by these new laws wind their way through the courts, appellate judges have been and will continue to be asked to settle new ambiguities. Is intoxication – being “under the influence” – a necessary element of the crime of driving under the influence? Are DUI laws that effectively prohibit drivers’ internal possession of inactive illegal drugs rationally related to the stated purpose of those laws? Do laws that single out drivers who’s blood contains inactive metabolite of some drugs provide equal protection under the law? Do per se drugged driving laws encourage arbitrary enforcement?
Oklahoma’s law doesn’t stop with charging formerly-drugged drivers with DUID – driving under the influence of drugs. Enhancements allow prosecutors to seek increased penalties against anyone involved in a personal injury accident – whether or not they caused the accident – if they’re also charged with DUI. Starting Oct. 1, 2013, that could mean anyone who tests positive for traces of recent marijuana exposure.
When a death or serious injury is involved, there is even more risk of long prison terms based on a statutory presumption of intoxication. Under Nevada’s metabolite DUI law, a woman was sentenced to 18 to 48 years in prison in an involuntary manslaughter case based on metabolites in her system, even though the jury concluded she was not impaired. The metabolites were from marijuana use days or weeks earlier.
Repeated convictions for un-intoxicated driving with metabolites of marijuana can result in felony DUI convictions with 10 years in prison on a second offense and 20 years on a third or fourth offense. What these laws effectively accomplish is something otherwise prohibited by most courts’ rules of evidence; they use evidence of prior bad act to convict the driver of an otherwise unrelated crime.
What is per se?
Anyone familiar with the .08 BAC threshold in drunk driving enforcement is familiar with a per se threshold for a statutory presumption of intoxication. State DUI laws throughout the nation set minimal standards of blood alcohol content, at or beyond which blood alcohol concentration is per se – or “in itself” – evidence of drunk driving. Otherwise, prosecutors must show other evidence of impairment.
With DUID laws, Oklahoma is the latest state to embrace a per se standard, but only for some drugs. Legislators didn’t adopt per se standards for cocaine, methamphetamine or most opiates. Yet the legislature set the per se standard for marijuana at the strictest level. Any evidence of marijuana metabolites in the system comprises evidence of intoxication, no matter how long ago the marijuana was metabolized or how little was metabolized.
A per se standard of .08 BAC invariably indicates a driver has recently consumed alcohol. For the most part, courts have agreed that legislatures could equate that level of alcohol in the system with impairment. From a scientific perspective, per se standards for other drugs don’t support the same conclusion. Unlike blood alcohol levels that indicate current intoxication, not all marijuana metabolites measured in drug tests are directly related to current levels of intoxication.
To understand the reason Oklahoma’s zero-tolerance metabolite DUI law raises questions, we need a basic understanding of drugs and metabolites. As a body metabolizes a drug, it produces metabolites. Some are intoxicating. Others aren’t. Oklahoma’s law makes no distinction between inactive metabolites that can remain in the system long after intoxication subsides, and active metabolites that can indicate acute intoxication.
Unlike some other drugs, marijuana’s metabolites can be found in a body long after a person smokes, eats or drinks the active ingredients of marijuana. Lawmakers seeking to set per se standards under which a person can be presumed intoxicated have often failed – or refused – to differentiate between active and inactive metabolites. In Oklahoma, the law to take effect Oct. 1, 2013, says any driver with any trace of marijuana metabolites in their bodily fluids can be charged with DUI.
Courts have handed down mixed decisions on related questions. In an unusual reversal of its own opinion, Michigan’s Supreme Court in 2010 overturned the same court’s 2005 approval of a law similar to the Oklahoma law. The courts 2005 interpretation of Michigan’s zero-tolerance metabolite DUI statute in People v. Derror 475 Mich. 316 “defies practical workability given its tremendous potential for arbitrary and discriminatory enforcement” the court’s majority wrote five years later in People v. Feezel 486 Mich. 184.
The Michigan court last month went even further in driving back that state’s zero-tolerance policy. It said the state’s medical marijuana law shields patients from prosecution for “internal possession” of marijuana.
“While we need not set exact parameters of when a person is ‘under the influence,’ we conclude that it contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person,” the unanimous court wrote in Poeple v. Koon.
Pennsylvania’s court has leaned the other direction – albeit on a separate question. A zero tolerance per se law does not deny drivers equal protection under the law, the court ruled in Com v Etchinson 916 A.2d 1169. An Arizona appeals court in Arizona v. Shilgevorkyan recently upheld that state’s zero tolerance law, allowing a DUI conviction of a driver to stand without evidence the driver was impaired.
“We determined that the legislative ban extends to all substances, whether capable of causing impairment or not,” the Arizona court concluded. Attorneys for the defendant have appealed the ruling to the state Supreme Court.
There are rational ways for Oklahoma to control drugged driving without casting a wide net for anyone who has used a drug now legal in our neighbor state of Colorado. Specialized training can equip police officers to reliably detect and document actual impairment by marijuana or any substance. Improved tests may even allow accurate chemical detection of active components of marijuana that are indicative of acute intoxication.
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If you’ve been charged with DUI or DWI – driving under the influence or driving while intoxicated – it’s important to obtain knowledgeable counsel and effective representation in court. Contact Wirth Law Office for a free no-cost consultation with a Tulsa DUI attorney. Call the Wirth Law Office immediately at (918) 879-1681(or toll free at (888) Wirth-Law) or submit the question form at the top right of this page.