I’m sorry, friends, but it appears your dreams of re-enacting Cheech and Chong’s Up in Smoke in your Prius have been dashed.
On Dec. 29, in an entirely unsurprising move, Sen. Jerry Hill (D-San Mateo and Santa Clara Counties) and Assemblymember Evan Low (D-Silicon Valley) introduced Senate Bill 65, which would ban smoking cannabis while driving. Created with support from Santa Clara District Attorney Jeff Rosen, SB 65 seeks to close a loophole created by the passage of California’s Prop. 64 in November. The language of Prop. 64 made it illegal to have an open container of marijuana in a vehicle but did not specifically outlaw the use of cannabis products while driving.
Hill and Low likely saw the issues plaguing Colorado, which has served as a lab rat of sorts for other states now facing similar quandaries about how to regulate legal marijuana use. Since legalizing recreational sales of cannabis for adults in 2014, Colorado legislators have grappled with how to determine what constitutes “driving under the influence” with regard to marijuana. They settled on a legal limit of 5 nanograms of THC per milliliter of blood, but added in the wrinkle that those testing above the legal limit would be subject to the law’s determination of “permissible interference.”
In a nutshell, “permissible interference” means that anyone testing above the threshold would have the right to try and prove that they were not impaired. In an article for Westword last March, author Thomas Mitchell cited a recent study from the National Center of Biotechnology Information that asserted that “because THC is fat-soluble, it can leave the bloodstream of occasional users within a couple of hours.” This is far different from alcohol, where it has long been established that there is a direct correlation between the amount of alcohol in one’s bloodstream and one’s subsequent level of impairment.
What this means is that when a law enforcement officer detains a Colorad driver on suspicion of being intoxicated, it is up to that officer to determine impairment, provided the driver tests above the incredibly minimal legal threshold. To confirm the immense variance in marijuana users’ THC levels and their corresponding impairment levels, another Westword writer, William Breathes, had his blood tested after abstaining from marijuana use for 15 hours. Despite being completely sober, his bloodwork came back at 13.5 nanograms, or triple the legal limit. Relying on individual officers to
assess impairment and a sobriety scale that is inconsistent at best has cost Colorado a lot of money. While exact figures are hard to come by, many of those arrested for THC-related DUIs have fought the charges, thanks to the legal gray area provided by the “permissible interference” language. These citizens have in many cases succeeded in having their charges reduced or outright dropped, but the legal proceedings have taken a toll on the resources of a court system already struggling to adapt to a multitude of new regulations brought about by the legalization of cannabis.
For these reasons, it makes sense that Hill and Low would take the first step of banning the consumption of cannabis while actively operating a motor vehicle. Unfortunately, they are but the first words in what will surely be a much longer conversation. As of now, there is not a legal standard for THC impairment in California, and if Breathes’ experiment is any indication, establishing a satisfactory one in the months to come will be difficult.
In a piece for NPR published in September, Colorado Public Radio‘s Ben Markus and KPCC’s Stephanie O’Neill cited scientists at the University of California, San Diego, as being one of several groups currently working to develop apps that could reliably test THC-impairment in roadside stops. It seems obvious that trying to measure how stoned someone is by the same metric we determine alcohol consumption is impossible.
Thus, Hill’s commentary that SB 65 “makes our laws for smoking while driving consistent with drinking while driving” is more lip-service than fact. Yes, if SB 65 passes, it will be equally illegal to drink alcohol or consume marijuana while operating a vehicle, but the hard work lies in determining exactly what makes those who have consumed cannabis prior to driving unfit to get behind the wheel.