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Medical marijuana users still worry about DUI

Now that Nevada’s Legislature has ended 13 years of ignoring a voter-approved constitutional mandate to provide medical marijuana to sick people, everything’s fine. Right?

Now that state-authorized medical marijuana dispensaries will be setting up shop, starting in 2014, getting the drug won’t involve committing a crime. (Under current law, you can’t buy marijuana, even with a prescription. You can grow your own plants, but buying the seeds is illegal.)

But with dispensaries, the problem’s solved. Right?

Maybe not.

While plenty of time was spent this session getting the dispensary bill passed, the Legislature ran out of time to consider a separate bill that addressed the issue of driving under the influence of marijuana.

Medical marijuana users — if they’re not careful — could easily violate the DUI standard found in Nevada Revised Statutes 484C.120(3), which says it’s against the law to drive with more than 2 nanograms of marijuana per milliliter in your blood, or 5 nanograms of marijuana metabolite. (A nanogram is a billionth of a gram, and a milliliter is 1/1000th of a liter.)

That’s a stricter standard, by the way, than exists for cocaine or heroin (50 nanograms per milliliter of blood), methamphetamine (100 nanograms) or LSD (10 nanograms). And there is no exception for people who have a prescription for medical marijuana.

That means medical marijuana patients might inadvertently smoke or otherwise ingest their medicine, drive a car even hours later and potentially be breaking the law.

That bothered Assembly Majority Leader William Horne, D-Las Vegas. His Assembly Bill 351 would have forced prosecutors to prove a driver was actually impaired by marijuana, rather than just show the nanogram standard was exceeded.

“I think we set people up for facing charges that may be ridiculous,” Horne said.

It’s not hypothetical. In 2000, Jessica Williams fell asleep at the wheel of her minivan when it ran off Interstate 15 and killed six teenagers who were picking up trash as part of a county youth-offender work program. She’d smoked marijuana hours before the accident. Although a jury determined she wasn’t under the influence of the drug, Williams is serving a 42-year sentence in state prison simply because she had more marijuana in her system than was allowed by law.

Law enforcement organizations opposed Horne’s bill, which ultimately was altered to call for a study of marijuana and driving under the influence. But the measure died anyway in the state Senate Health and Human Services Committee.

Clark County District Attorney Steve Wolfson said he’s concerned primarily about unsafe drivers, whether they have a prescription or not.

“I’m concerned about public safety. I’m concerned about people getting hurt on our roadways,” Wolfson said. “I just didn’t want to agree to something that would be harmful to the prosecution of individuals who should be prosecuted.”

Wolfson said he, Sheriff Doug Gillespie and U.S. Attorney Dan Bogden are going to meet soon to discuss the implementation of medical marijuana dispensaries in Nevada and the law enforcement issues they raise. (Marijuana remains illegal under federal law, and patients can still be arrested, even if they have state authorization to use the drug.)

Horne maintains it’s wrong to treat marijuana differently than other prescription drugs. Police and prosecutors must prove that legitimate users of prescription painkillers, for example, were actually impaired to get a conviction. There’s no automatic standard for driving under the influence of Percocet, Lortab or Oxycontin. Regardless of the fairly radical changes in the law regarding marijuana in the past 20 years (simple possession used to be a felony), it’s still considered by some to be a street drug.

“Marijuana still contains that stigma of an illicit narcotic,” Horne said. “The stigma is still there.”

Wolfson readily agrees that there could be a legal problem treating medical marijuana differently than other prescription drugs. But that’s an issue that may be litigated in the future. For now, he says, he’s most concerned about prosecuting drivers in accidents that kill or injure people.

“We’re going to take a pragmatic approach to this,” he said.

Horne is prevented by term limits from running again for office, so it’s unclear whether his bill will be brought up in the next session of the Legislature. What is clear, however, is that even though there’s progress in some areas of marijuana law, other areas have yet to catch up.

“It seems to be a typical Nevada type of case,” he said. “We want to take baby steps. We don’t want to lead.”

Steve Sebelius is a Las Vegas Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or ssebelius@ reviewjournal.com.

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