DA wants state’s marijuana DUI law changed

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 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-year-old 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. Contact Arnold M. Knightly at aknightly@reviewjournal.com or 702-477-3882. Find him on Twitter: @KnightlyGrind.