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Lawmakers debate standard for stoned driving

CARSON CITY — The debate over how stoned driving should be policed continued in the Legislature on Monday, as lawmakers debated a bill that would require more than a positive blood test to determine if someone is impaired.

Backers of Assembly Bill 400 cited several studies that showed that there was no correlation between the THC or marijuana metabolite levels in a person’s blood and impairment.

“This is not a matter of ‘We need more studies,’” said Paul Armentano from the marijuana law reform advocacy group NORML during a hearing for the bill in the Assembly Judiciary Committee on Monday. “These questions have been asked and they have been answered for over four decades.”

The reports cited included a 2016 study from AAA that recommended that Nevada move away from threshold-based “per se” laws and instead allow law enforcement to make the determination if someone is impaired based on observations and field sobriety tests.

Under Nevada’s current law, people are considered impaired if their blood test comes back showing the presence of 2 nanograms per milliliter of THC or 5 or more nanograms per milliliter of marijuana metabolite. Nevada is one of six states with thresholds on THC in the blood to test for impairment, ranging from 1 to 5 nanograms, according to the National Conference of State Legislatures, while 11 states have a zero-tolerance policy for marijuana.

“What it means in practice is that you have little to no ability to defend yourself against a DUI charge,” said Assembly Judiciary Chairman Steve Yeager, D-Las Vegas, who presented the bill.

Workers’ comp issues

The bulk of the concerns raised during Monday’s hearing by both lawmakers and opponents of the bill revolved around how the proposal would also affect workers’ compensation claims if there was no threshold to prove impairment after an on-the-job accident.

Shaun Meng, a workers’ compensation attorney in Las Vegas, said that changes “would leave employers without a mechanism for denying claims when an employee has injured themselves on the job while under the influence of marijuana.”

Yeager countered that companies already run into similar issues with prescription drugs, adding that this “isn’t new territory for employers.”

Law enforcement, including representatives from the Metropolitan Police Department and Clark County district attorney’s office, said that the bill’s changes 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.

Decades-old law

The laws governing the threshold for marijuana influence in Nevada were enacted in 1999. They lay out thresholds for the presence of THC in a driver’s blood, but also the presence of its metabolites, which can linger for weeks after use. The thresholds in the law for THC and metabolites are the lowest levels that a test can detect.

Determining whether a driver is impaired by marijuana is far more complex than the simple, reliable tests that have been developed for measuring alcohol impairment.

There’s no science that shows drivers become impaired at a specified level of THC in the blood, and whether someone is safe comes down to the individual. Regular consumers may not be impaired even with relatively high levels of THC, while others with lower levels might be unsafe behind the wheel. Generally, those who use marijuana more frequently can exhibit persistent levels of THC in their blood long after use, while the presence of marijuana can decline more rapidly among occasional users.

Armentano, from NORML, said this bill wouldn’t stop prosecutors from using marijuana blood tests as part of a prosecution, but it just would not be the sole factor in determining if someone is guilty of a marijuana DUI. And Yeager noted that roughly 35 states don’t have a set blood limit for THC but are still able to prosecute marijuana DUI offenses.

While acknowledging that the Clark County district attorney’s office opposed the bill, Yeager closed out the bill hearing by quoting Clark County District Attorney Steve Wolfson from a 2014 article, in which the county’s top prosecutor said that everybody “recognizes there needs to be a review of the law with regard to driving under the influence of marijuana. 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.”

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Contact Capital Bureau Chief Colton Lochhead at clochhead@reviewjournal.com. Follow @ColtonLochhead on Twitter.

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