Do we need roadside tests for marijuana?
The simple answer is: no.
Since California legalized and regulated the sale of marijuana for medical purposes in 1996, the nation has been obsessed with how the police enforce DUI laws for “driving while high on marijuana.”
It’s now become an even great concern as more states around the country have legalized recreational and medicinal marijuana.
See TCR’s Stephen Bitsoli on: “Do We Need Roadside MarijuanaTests?”
But let’s be realistic. Marijuana users have been smoking and driving on the nation’s roads, since the 1960s. When you hear or read from your local sheriff that his or her deputies don’t know how to take enforcement action, since “there is no roadside test for marijuana,” and the sheriff clutches his pearls and trembles into the camera that we should therefore not legalize marijuana, I say: buffalo chips.
As a 15-year veteran of law enforcement who was honored multiple times as the #1 arrester of drunk drivers, I know this issue well. I tested about 1,200 drivers and arrested about 400 of them. I only had to release one: a guy who tested fuzzy, refused the roadside breath test in 1987 and only blew an 0.06% BAL (blood alcohol level) at the jail.
I arrested only three for non-alcohol DUI. They just weren’t that common.
The fact is, until about 1985, police did not have the small, roadside PBT (portable breath tester, or breathalyzer) used to measure blood alcohol content. I arrested about 300 drivers based on bad driving, smell of alcohol and failing the subjective roadside tests (say your alphabet, etc.). This is not rocket science.
Regarding DUI Marijuana or any non-alcoholic, intoxicating substance (such as opioids, prescription pain killers, magic mushrooms), the amount in your blood, a percentage, an arbitrary number (5 nanograms of marijuana for example) is not appropriate for enforcement.
If the citizen is in great pain and takes an Oxi 80 mg to bring the pain from a 9 to a 3, that driver is still sober and legal to drive. If a citizen uses marijuana as an analgesic (pain killer), the same principle applies, as long as the citizen-driver don’t consume too much and become intoxicated.
Bad driving and field tests are more important than chemical field tests, which are of minimal usefulness. But concerns about this appear to have fueled a new industry. Some private companies will soon begin selling a roadside test for the presence of marijuana. But when the test comes back negative, do we just let the driver go – despite bad driving and flunking our field tests?
Absolutely not. It would be clear to any responsible officer when a driver is intoxicated on something and is a danger to himself and the public. We arrest, read the rights for a chemical test, and ask for blood to be taken at the local clinic or hospital. The driver goes to jail for eight hours and public safety is served.
Days later, the lab will tell us and the prosecutor what was in the blood. And six months later, a jury can convict the driver, despite no established level or ‘number’ of “intoxication” for that drug.
I understand the nation’s desire to have a scientific device declare a driver to be legal or not. Unfortunately, that is not possible with marijuana.
Americans should be aware that my colleagues and I have been at this type of enforcement for some five decades. We’ve long been trained on how to keep you safe. If your opposition to legalizing marijuana is because the police are unable to enforce DUIM, you need to find another reason. Your premise is based on false information.
For those who are interested, here is a 10-step primer of what a law enforcement officer looks for in assessing DUI.
Howard Wooldrige, a retired detective, is founder of Citizens Opposing Prohibition (COP), and co-founder of the Law Enforcement Action Partnership ( www.LEAP.cc). He welcomes comments from readers.