California Pot Laws Usher in Drugged-Driving Tests

A police officer demonstrates a mouth swab test capable of detecting drugged driving, ahead of full legalization of recreational marijuana in California. (Derek Fleming/CNS)

SACRAMENTO, Calif. (CN) – Last week, Olivehurst, California, resident Joseph Bresnyan, 40, stopped to change a flat tire on Interstate 80 near the Sacramento suburb of Roseville. A motorist drifted onto the shoulder, striking and killing Bresnyan.

That driver, Brandon R. Rotolo, 24, of Vacaville, has been arrested and charged with drugged driving. Police say Rotolo was high on marijuana at the time of the accident.

Marijuana-related accidents may be on the rise in California, and multiple reports from states that have legalized medical and recreational marijuana show significantly higher rates of drugged-driving accidents – even as alcohol DUIs decline.

For law enforcement in California soon to enter the uncharted waters of recreational marijuana, the job could not be harder.

“We in law enforcement have the sworn duty to protect members of our communities and save lives,” said David Swing, first vice president for the California Police Chiefs Association. “Just last month it was reported that for the first time in history, drivers killed in crashes are more likely to be on drugs than drunk. Unfortunately, while law enforcement has many tools to combat drunk driving, our drugged-driving tool box is far less equipped.”

Unlike alcohol, marijuana intoxication proves difficult to measure. Variables such as the user’s age, race and gender, frequency of use, and even the method of consumption or strain of the drug skew results. Marijuana can be detected in a person’s blood or urine for up to 30 days after use, though the inebriating effects last only a few hours.

Further complicating the process, the California Legislature has yet to update criminal codes and establish limits concerning marijuana following voters’ approval of recreational marijuana this past November. Police currently do not have tools to detect how high a driver might be, even when they suspect marijuana may have been a factor in a traffic stop or accident.

On Wednesday, the California Highway Patrol and officers from the Sacramento Police Department held a demonstration at the state Capitol to educate legislators and the public about current procedures and emerging technology to detect drugged driving.

“Currently, what we are trying to do is arm our law enforcement officers with some of the tools that can improve their ability to get dangerous drivers off the road,” said Assemblyman Tom Lackey, R-Palmdale.

Lackey hosted the demonstration and is the author of Assembly Bill 6, one of three measures meant to assist law enforcement in California. AB 6 would establish a drugged driving task force made up of law enforcement and members of the public to develop practices and procedures for addressing drugged driving and ensuring fairness.

“I believe that the best path forward to deal with marijuana-impaired driving is to develop new field sobriety tests that are specifically designed to recognize when someone is too impaired to drive,” Lackey said. “I also believe we need to use new technology that focuses on detecting recent use in a driver’s breath or saliva. Both of these things need to work in conjunction so drivers who are not impaired are not falsely accused.”

CHP Officer Tyler Eccles led the demonstration, illustrating differences between the methods most officers use to determine sobriety and highlighting training officers receive in light of the decriminalization of marijuana.

In some regions of California, including Sacramento, officers have begun using mouth swab test kits that detect the presence of six legal and illegal drugs, including marijuana.

California Assemblyman Tom Lackey, flanked by state Sen. Jerry Hill and law enforcement officers, addresses the crowd at a demonstration of tests to detect drugged driving. (Derek Fleming/CNS)

The swab kit, manufactured by California-based Alere Toxicology, gives officers results in five minutes. Rather than test the long-term markers of marijuana, the swab kit tests for Delta-9 THC – the psychoactive component that gets users high. Delta-9 THC diminishes quickly after ingestion, making it useful for law enforcement and prosecutors to demonstrate intoxication.

A Kern County judge ruled last week that results from the swab test are admissible as evidence, in a first for prosecutors seeking a drugged-driving conviction there.

State law has not established a legal limit of THC. Some states, including Nevada and Washington state, have set limits of 2 nanograms and 5 nanograms per milliliter of blood, respectively.

State Sen. Jerry Hill, D-San Mateo, said the effort to protect California drivers is both bipartisan and bicameral.

“This test today really highlighted and brought home for me just exactly what is necessary,” Hill said.  “It’s a challenge. We have to use every tool possible.”

Hill has introduced legislation to establish limits and penalties for drugged driving. Senate Bill 698 sets a limit of 5 ng/ml of Delta-9 THC when a person also registers between .004 and .007 percent, by weight, of alcohol. The first violation would be an infraction, and each additional violation would be a misdemeanor.

Hill has also introduced Senate Bill 65, which would make smoking marijuana while driving a punishable offense.

Most research and reporting on marijuana-related traffic accidents is relatively new. Prior to 2010, few police departments reported accidents where marijuana may have been a factor. Colorado has only tracked marijuana fatalities since 2013. Since then, the Colorado Department of Transportation has reported an increase from 39 deaths to 68 in 2015.

Similarly, Washington state has reported more than two times the number of marijuana-related accidents, up from 8 percent in 2013 to 17 percent in 2014, according to the AAA Foundation for Traffic Safety, a nonprofit organization.

Chris Halsor, Nevada’s traffic safety resources prosecutor, cautioned in an interview with the Reno Gazette-Journal in April that the numbers could be misleading.

“If we see an increase in DUI detection, is it because we have more impaired drivers or is it because we have better trained officers?” Halsor, who is training law enforcement and prosecutors in 15 rural Nevada counties to identify drugged drivers and build stronger cases against them, said.

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