Author Archives: Eugene Yoo

Greedy Lawyers Are Good for the Environment: Controlling the Environmental Effects of Marijuana Cultivation through Private Enforcement

As momentum grows for marijuana legalization, many are worried about the environmental impact of cultivation. Enacting laws to control the manner of marijuana cultivation may protect California’s water and wildlife, but such laws are only effective if they are enforced. The 2014-2015 budget for California earmarked 3.3 million to help prevent destructive marijuana cultivation, (see p. 108-119) but with legalization on the horizon, the market for marijuana could dramatically increase and more funding may be needed. However, the responsibility of combating illegal and destructive cultivation does not have to lie solely with the government. Instead, private individuals can be incentivized to sue those who operate illegal grow sites. Forcing violators to compensate the cost of private enforcement will give a sufficient monetary incentive for private parties, as well as deflect costs and labor away from the government and its agents.

Both the state government and environmental groups are concerned about the environmental damage caused by marijuana cultivation. A study by the California Department of Fish and Wildlife (CDFW) on Humboldt County found that the water demand for cultivation often exceeded stream flow, causing streams to go dry around large scale growing sites. Scott Bauer, an environmental scientist with the CDFW estimates that over 95% of grow sites divert water without an official permit. Furthermore, he points out that growers also clear forest areas to make way for cultivation. In considering these issues, both the CDFW and the Nature Conservancy support an increase in funding for state enforcement to stop and deter harmful cultivation.

While tax revenue from marijuana can be diverted to provide for any increase in the costs of environmental enforcement, groups like the Nature Conservancy are worried that the laws surrounding marijuana legalization will not set aside tax revenue for environmental concerns. Such is the case in Colorado, where there is no tax revenue specifically set aside to manage the environmental hazards of marijuana cultivation. (See pg. 19-29.) Even if marijuana taxes are used to pay for enforcement, the price of marijuana may fall after legalization, to the point where tax revenue is unable to pay for enforcement. This fear of insufficient funding is built upon the idea that public enforcement, rather than private enforcement, is the primary method to carry out state rules and regulations.

Public enforcement is when sanctions against violators are carried out by government agents, either directly or by their consent. This is found in criminal law, where violations of the Penal Code, such as grand theft and murder, are asserted by the police and district attorney. On the other hand, private enforcement is when private persons and organizations are allowed to sanction violators without government initiative. This is often found in tort law where the California Civil Code defines and permits legal actions like negligence and products liability, but it is private parties who bring suit rather than government agents.  Private enforcement would alleviate the issue of government funding, as the cost and labor of enforcement would primarily come from private parties rather the state of California.

While there are environmental tort actions, they are effectively personal injury suits based on exposure to toxic chemicals. These “toxic torts” have been criticized for their lack of effectiveness in reducing environmental harm. Albert C. Lin in his article Beyond Tort: Compensating Victims of Environmental Toxic Injury points out the following faults of environmental tort actions: 1) injury and causation are difficult to prove; 2) environmental harms are often so diffuse that individuals do not have incentive to bring suit; and 3) the aforementioned issues lead to little deterrence, since the risk of liability is low.

Under the Clean Water Act and Clean Air Act, the US government has established provisions that allow for citizen suits based on statutory violations related to water pollutants and air emissions. (33 U.S.C. § 1365; 42 U.S.C. § 7604.) These allow any person to commence a civil action on his own behalf against another who is in violation of a standard or limitation of either act. These citizen suits also require a plaintiff to prove injury and causation, but the sufficiency of proof seems significantly easier to meet compared to toxic torts. (See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183-85 (2000).) However, since injury and causation are still technically required, the concerns of Mr. Lin are still relevant and there may be risk of underenforcement.

There is another private enforcement option that makes it possible to avoid the issues of injury and causation. Qui tam is a legal concept that allows a private party to sue, despite not being personally harmed by the defendant’s conduct. While citizen suits are brought by persons on their own behalf, qui tam actions are brought by people on the government’s behalf. Essentially, plaintiffs filing a qui tam action are not trying to redress any personal injury, but instead are seeking enforcement of the government’s laws.1 For this reason, qui tam actions bypass the issues of harm and causation.2

Currently, qui tam actions are only allowed in federal “whistleblowing” suits – a common name for actions against federal contractors for defrauding the government.3 For these federal whistleblowing suits, liability is established by statute under 31 U.S.C. section 3729, which defines the actions that would be unlawful. A separate provision in section 3730 allows qui tam actions on behalf of the government.

Controls on marijuana cultivation could be set in a similar way. Statutes could establish legal requirements for cultivation that would encourage best practices, and failing to grow within the requirements would result in liability. For these statutes, a provision for qui tam actions on behalf of the government would also be included.

A plaintiff would only need to show that the defendant had violated a marijuana cultivation statute, making this a far more accessible action than toxic torts or citizen suits, as personal injury and causation would be irrelevant. Allowing qui tam actions would resolve the injury and causation issues, but for there to be adequate enforcement, a private incentive must be created.

Because environmental harm is generally diffuse, halting unlawful cultivation may not be enough incentive by itself, as the cost of litigation may exceed any personal injury. The solution is to create a provision that would allow courts to award the cost of litigation to the prevailing party, to be paid by the opposing party. This is already widely used: provisions for awarding the costs of litigation are available for citizen suits under the Clean Water Act and Clean Air Act, as well as for qui tam actions for federal whistleblower suits.

On top of awarding litigation costs, some monetary incentive must be established to allow plaintiffs to profit from a successful suit. While an award of litigation costs would create a supply of willing lawyers, there also must be an incentive for lay people to hire them and direct their attention to unlawful cultivators.

The federal whistleblower law awards the plaintiff a bounty for a successful suit. (31 U.S.C. § 3730(d).) This bounty consists of a percentage of the monetary damage that the government suffered as a result of the fraud. In the context of marijuana cultivation, a monetary award based on environmental damage would be difficult, as it would bring about the issues of injury and causation. Instead, the statutory requirements for marijuana cultivation could include fines for violators, where the plaintiff would be awarded some percentage. By awarding a portion of the fines to the plaintiff and compensating his attorney, the qui tam action would be adequately incentivized and create a private market for enforcement.

The award of fines and litigation costs can be further modified to encourage efficient and considerate enforcement. For example, the award can be increased or decreased based on the severity of environmental harm, either actual or potential. That way, the more egregious violators are prioritized in the private market. In order to discourage frivolous suits, the award of litigation costs could work similar to the attorney’s fee provision for civil rights actions, where a judge can award attorney’s fees to the prevailing defendant if the suit brought against him was “unreasonable, frivolous, meritless or vexatious.” (Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 421 (1978).)

With the proper statutory framework, a provision for qui tam actions could establish an efficient enforcement method that works around the issues of injury and causation. Along with adequate monetary incentives for attorneys and their clients, it could create a private market of enforcement that would not require significant expenditures by the government. It shows that public enforcement is not the only way to dealing with the environmental problems caused by marijuana cultivation, and private enforcement solutions should not be ignored, but seriously considered for the cash-strapped state of California.

1. Evan Caminker, The Constitutionality of Qui Tam Actions (1989) 99 Yale L.J. 341, 344-45
2. Id.
3. Id. at 342-43

What to Expect (and Not Expect) from the THC Breathalyzer

The promise of a marijuana breathalyzer has been widely mentioned in the news, with articles suggesting that this could be the reliable roadside test that officers need. Even proponents of marijuana legalization have expressed enthusiasm over such a product, explaining that a fair test for intoxication would make people less opposed to legalizing marijuana. Typing “THC breathalyzer” into Google results in the auto-complete of “THC breathalyzer stock.” All the players of marijuana legalization seem to be interested: the proponents, the watchdogs, and the investors. The promise of an accurate, non-invasive test for marijuana intoxication is attractive, but a THC breathalyzer may not be the product that delivers.

The product in the spotlight is the THC Breathalyzer by Cannabix Technologies, Inc. Cannabix’s description of the THC Breathalyzer states that its device “would be used to provide detection of THC at the roadside to identify drivers intoxicated by the use of marijuana.” The THC Breathalyzer is still in development, but data on THC breath testing can predict how Cannabix’s device will function. Such data has suggested that the THC Breathalyzer would be able to discover drivers who have recently smoked. However, it would still not be able to discern when someone has used enough to be considered an unsafe driver.

An experiment conducted in 2013 tested the breath of regular and occasional marijuana smokers to determine the length of time that THC could be detected. Taking into account both types of users, the study found that THC is only detectable between thirty minutes and two hours after smoking. (Regular smokers were those who smoked four times or more in a week, and occasional smokers were those who smoked less than two times a week.)

These results suggest that the THC Breathalyzer could limit positive results to those who have recently smoked. This offers an alternative to blood testing, where residual THC can still show up days after smoking. However, using marijuana and driving is only a problem when there is a dangerous level of impairment. Having a few sips of wine before driving away from a restaurant is generally not a safety issue. Likewise, a person can smoke a small amount of marijuana before driving and it may not have a significant effect on their driving skills.

The testing device used in the study went beyond a simple positive or negative indication, and could determine a subject’s exact breath THC concentration. While not much is known about Cannabix’s THC Breathalyzer, it may have the same ability. By being able to measure a subject’s THC breath concentration, the breathalyzer has the potential to allow police to separate dangerously intoxicated drivers from those who only have a negligible amount of THC in their system.

However, in order for this to occur, there must be evidence of the relationship between THC breath concentrations and accident risk. At this point, there isn’t any, and the largest US study on THC and crash risk found that there is no increased crash risk for drivers testing positive for THC. Without establishing a correlation between THC breath concentration and accident risk, a THC breath test lacks the ability to independently determine who is a dangerous driver.

Even if we assume that drivers with a certain THC breath concentration are dangerous, this can result in the unfair targeting of regular smokers. Despite abstaining for at least sixteen to twenty hours before testing and smoking the same amount of marijuana, the breath test experiment found that regular smokers had double the amount of THC in their breath compared to occasional smokers. Because of the lengthy period of abstinence, there could not have been any lingering intoxication from prior use, and the increase in THC levels for regular users does not reflect a greater level of intoxication.

Furthermore, while the occasional smokers had no THC found in their breath after an hour, it took two hours for the regular smokers to show no signs of THC in their breath. Essentially, regular smokers had twice the amount of THC in their breath, and it took twice the amount of time for the THC to dissipate. Since the dosage was the same between the occasional and regular smokers, it is likely the level of intoxication was at least similar. However, without knowing the dosage and time of use, sole reliance on the breath test would lead one to believe that the regular users smoked a larger amount, smoked more recently, and were more intoxicated as a result. Over-reliance on breath tests would unfairly target smokers for their amount of use, even when it may have no connection to their level of intoxication while driving. This is especially a concern for patients who have a legitimate medical need for consistent and regular marijuana use.

Even moving on from the shortcomings of a breath test, Cannabix’s product will face a major problem in being as useful and widely adopted as an alcohol breathalyzer. Every state has a statutory .08% blood alcohol concentration limit (BAC). As long as a breathalyzer gives the result of .08% or higher, the police are free to arrest drivers, and the district attorney’s office will be able to prove that they broke the law of driving with a BAC .08% or above. Herein lies the main problem with comparing the THC Breathalyzer to alcohol breathalyzers: there are no laws limiting a certain level of THC breath concentration while driving. So far, states have only used blood THC concentration as their metric. Each state must enact a THC driving limit based on breath concentration, or modify their current law to include THC breath concentration. Otherwise, the THC Breathalyzer will only be a tool for discovering drivers who have recently smoked – nothing more.

This does not mean Cannabix’s product will be useless; it just wont be the next alcohol breathalyzer. The THC Breathalyzer could be used as a companion to other forms of investigation. Police can use it to see if a driver has recently smoked marijuana, and then commence with other tests and observations to figure out the extent of the driver’s intoxication. It will be one of many tools to discover stoned drivers, but with some unique benefits. It will be less invasive than a blood test, easier to use, and it will still have the objectiveness that comes with a chemical test. Furthermore, the short detection window makes it a better candidate for determining recent use than a blood test.

Although Cannabix’s THC Breathalyzer will have a role to play in the changing landscape of marijuana use and enforcement, it will fail to match the utility of alcohol breathalyzers. THC breath tests cannot determine a subject’s accident risk and do not have the same statutory support. If Cannabix and their investors are relying on the THC Breathalyzer to take on the same role as alcohol breathalyzers, they may be quickly disillusioned. On top of positioning and selling their product, they’ll need to deal with legislatures in every state, a task that most would consider a nightmare.

THC Driving Limits: A Shot in the Dark

blood_tests

In California, a new ballot initiative to legalize marijuana is being planned for 2016. In response to legalization, California may follow in the footsteps of Washington and Colorado by enacting a “per se” law to combat the supposed dangers of driving under the influence of marijuana (DUIM). A per se law would create a presumption of DUIM if the driver tests positive for certain amount of THC, a psychoactive component found in marijuana. While similar laws exist nationwide for driving under the influence of alcohol (DUI), marijuana is not the same drug, and a DUIM law that doles out punishment based on a single biological measure may create unjust results.

What is a “per se” law? Essentially, a per se law makes a certain act illegal without needing proof of any surrounding circumstances. A well-known example is the .08 blood alcohol concentration (BAC) limit for enforcing DUIs. In every state, if you are caught driving with a BAC level over .08, you are presumed to be intoxicated, and that fact alone is enough to support a criminal charge. In response to marijuana legalization, a new per se law has been enacted in Colorado and Washington – if you have 5 nanograms of THC per millimeter of whole blood, you are presumed to be too high to drive.1 Given the widespread use of whole blood THC concentration as a metric for DUIM, this type of testing will be the focus of this article.

The current statute criminalizing DUIM in California requires proof that a driver was unable to operate a vehicle with the same caution and safety of a sober person.2 This is unlike a per se law because there is no single piece of data that will, by default, support a criminal charge. Instead, juries can consider all the evidence they are given and have it guide their judgment on whether a driver was or was not able to safely drive. In a post-legalization California, the goal of DUIM law should be to prohibit dangerous driving. To meet this goal, a per se law needs to be able to have an accurate way to test for intoxication, and the level of intoxication must correlate with an increased risk of crashing. Many proponents point to DUI per se laws as a model of success, but alcohol and marijuana differ both in the danger they present and the ability to accurately test for impairment.

DUI per se laws have been built on a foundation of scientifically proven crash risks. Since DUI law criminalizes a condition that may cause harm, the chance of causing harm was vital in the creation of DUI per se laws. In 1964, a study took place in Grand Rapids Michigan involving 9,353 drivers involved in car crashes and 8,008 drivers who had driven at the same times and locations without being involved in a crash.3 The Grand Rapids Study found that drivers with a BAC of .08% were twice as likely to crash, those with a .10% were six times as likely, and those with a .15% were ten times more likely.4 These results were confirmed in the many studies that followed after. (See pg. 45.) This correlation between BAC and crash risk gave lawmakers the ability to design per se laws that would criminalize a certain amount of risk. (See pg. 39.) In all states, double the crash risk, or .08% BAC, incurs a criminal penalty.

On the DUIM side of things, states like Washington and Colorado have used a 5 nanogram THC limit, and some states have used limits of 2 nanograms and lower.5 However, unlike the development of DUI per se law, a DUIM per se law cannot be designed around the risk of accidents. First, a significant crash risk for marijuana has not been definitely established. Second, THC’s presence in the body does not track impairment accurately.

As discussed in my previous article, the National Highway Traffic Safety Administration (NHTSA) recently released the results of a study that did not find an increased crash risk for drivers who tested positive for THC. The NHTSA study is the first large-scale study of its kind conducted in the United States and it would have been the best indicator of a crash risk, had there been one. This result is not through some trick of statistics or a poorly done study, but is likely owed to the fact that high drivers can compensate for the effects of marijuana by driving more conservatively. In contrast, drunk drivers are unable to compensate for their intoxication, and the NHTSA study confirmed that drivers with a .08% BAC had four times the chance of crashing.

If some crash risk is later shown, or the effect of marijuana on driving is enough to justify a per se law, its application would still run the risk of indicting drivers who aren’t intoxicated. THC testing presents numerous issues that remove it from the accuracy and fairness associated with BAC testing. Alcohol quickly equalizes between the brain, blood, and other tissue, so the level of alcohol in the blood (BAC) is similar to the level of alcohol intoxication in the brain. (See pg. 140.) THC does not reach a uniform concentration throughout the body, so the level of THC found in the blood will not consistently match the level of THC in the brain.

Furthermore, THC tends to remain in the body far longer than the duration of its effects. The impairing effects of marijuana will normally wear off in approximately three to five hours after smoking. However, THC can still be detected for as long as eight to twelve hours in infrequent users, and heavy users have shown to still have detectable levels of THC for several days. Since 50 or to 100 nanograms of THC is the typical peak, marijuana users may be unfairly targeted, especially in states with zero tolerance policies or THC limits as low as 2 nanograms. (Pennsylvania and Ohio, respectively).6 It is entirely possible that marijuana users who smoke on a Friday night could be arrested for DUIM just by driving the next morning.

These values reflect plasma or blood serum THC levels. Divide these values by about half for whole blood levels. (Transform Drug Policy Foundation, How to Regulate Cannabis: A Practical Guide (2014), pg. 176.)

These values reflect plasma or blood serum THC levels. Divide these values by about half for whole blood levels.
(Transform Drug Policy Foundation, How to Regulate Cannabis: A Practical Guide, at 176 (2014).)

Since THC concentrations generally fall between .5 and 2 nanograms in three to four hours after smoking, (see pg. 176) using a higher nanogram limit will reduce the chance that drivers are punished based on a lingering amount of THC in their blood. While it is possible to set a THC limit just high enough to avoid charging those with a residual level of THC, there is still a risk of charging drivers who have used a negligible amount of marijuana but are tested around the peak of their blood THC concentration. While higher THC limits help focus on drivers who have smoked more recently, the true goal of testing should be to catch dangerously intoxicated drivers, regardless of when they smoked. Given that blood THC concentrations poorly reflect intoxication, testing fails to separate dangerously intoxicated drivers from those who simply use marijuana and drive.

Just because there isn’t a per se law doesn’t mean that DUIM is legal or that the current law isn’t working. DUIM is a crime in California and will continue to be after legalization. When investigating a possible instance of DUIM, police officers will take note of many different factors, like the subject’s driving, behavior, performance on field tests, blood tests, and possession of drugs and/or paraphernalia. This body of evidence would then be used by a prosecutor to substantiate the criminal charge.

Proponents of a per se law argue that a legal limit for THC would establish a clearer method of charging intoxicated drivers, as a test result is all it takes to prove that someone could not safely drive. While this will make it easier to charge marijuana users who drive, there would be no guarantee that officials are only charging those who were dangerously impaired. Ignoring this issue and relying on the courts to fix it would be to “let god sort them out.” Criminal indictments create significant hardship for defendants, regardless of whether they may be found not guilty later on. Furthermore, many defendants would be financially incapable of hiring an expert who could educate the jury on the inaccuracies of THC testing, leading to disparate outcomes in the judicial system based purely on wealth. A per se law runs the risk of arbitrarily causing hardship for marijuana users, acting more as a blanket prohibition than targeted deterrence.

While the current law may not be perfect, it still takes into account many different facts to establish whether a driver is dangerously impaired, cutting straight to the goal of DUIM enforcement. On the other hand, a per se law and the resulting tests would not accurately differentiate between those who pose a danger the public and those who merely use marijuana and drive. DUI per se laws were developed around a consensus of evidence that showed an increase in crash risk for BAC levels as little as .05%. (See pg. 45.) Because there is not a similar level of evidence tying blood THC concentration to accidents, lawmakers cannot criminalize THC levels based on validated safety risks. With no evidence of harm and no accurate way to test intoxication, enacting a DUIM per se limit would not be a shield against hazard, but more like a shot in the dark.

1. Colo. Rev. Stat. Ann. § 42-4-1301(6)(a)(IV); Wash. Rev. Code Ann. § 46.61.502(1)(b)
2. Cal. Veh. Code § 23152(e); CALCRIM 2110
3. Robert F. Borkenstein et al., The Role of the Drinking Driver in Traffic Accidents (1964).
4. Id.
5. Colo. Rev. Stat. Ann. § 42-4-1301(6)(a)(IV); Wash. Rev. Code Ann. § 46.61.502(1)(b); Ohio Rev. Code Ann. § 4511.19(A)(1)(j)(vii); 75 Pa. Cons. Stat. Ann. § 3802.
6. 75 Pa. Cons. Stat. Ann. § 3802; Ohio Rev. Code Ann. § 4511.19(A)(1)(j)(vii).

 

Are High Drivers High Risk?

at-checkpoint

The danger of driving under the influence of alcohol (DUI) has been solidified for some time. The development of DUI laws and enforcement has been grounded in scientific research about crash risks and the effects of alcohol are easy to measure. However, driving under the influence of marijuana (DUIM1) presents an entirely different issue. It may not be wise to assume that similar laws, tests, and enforcement methods should apply. If there is anything to take away from the body of DUI policy, it is that it was developed to decrease accidents rather than indirectly prohibit alcohol. If marijuana is to be legalized, there is likely to be an increased level of enforcement to prevent the dangers of DUIM. However, such enforcement is only necessary if these dangers actually do exist.

DUIM is a criminal offense in California and will continue to be even if marijuana is legalized.2 A California roadside survey conducted in 2012 found that 7.4% of drivers tested positive for some amount of THC, a psychoactive component found in marijuana. To put that into perspective, 7.3% of drivers tested positive for alcohol. Although the occurrence of intoxicated drivers may be almost identical for alcohol and marijuana, the similarities quickly diverge when it comes to the crash risk these drivers present. DUIM after legalization is only an issue if high drivers actually present a danger to themselves and society.

The National Highway Traffic Safety Administration (NHTSA) recently released the results of a study that was “the largest and most comprehensive study to address alcohol and drug crash risk in the United States.” This study was conducted in 2012 over a 20-month period in Virginia and tested thousands of drivers using blood, urine, and saliva for the presence of THC. The NHTSA took care to match characteristics of control drivers with those of crash-involved drivers as closely as possible. These characteristics included age, gender, ethnicity, and alcohol use. When the variables of age, gender, ethnicity, and alcohol use were not accounted for, the results showed an increase in crash risk for those who tested positive for THC. However, when the analysis accounted for these variables, the correlation vanished – the NHTSA study did not find an increased crash risk associated with THC use. In contrast, drivers at a .08% blood alcohol level (the legal limit in every state) had about four times the chance of crashing.

The NHTSA study is the first large-scale study of its kind conducted in the United States, and so it stands to be the best indicator of an actual, observable crash risk for DUIM in California. The study found no increased risk, and it calls into question whether increased enforcement is actually necessary. This leads one to wonder how these results are even possible. Marijuana is a psychoactive drug, and an analysis of numerous studies (Sewell) “concluded that marijuana causes impairment in every performance area that can reasonably be connected with safe driving of a vehicle, such as tracking, motor coordination, visual functions, and particularly complex tasks that require divided attention[.]” Despite these effects, the Sewell analysis found that most marijuana intoxicated drivers show only small impairments on actual road tests while more experienced marijuana users showed almost no functional impairment.

The study attributes these results to evidence that marijuana intoxicated drivers are are able to compensate for the effects of their intoxication. For example, they will drive slower, increase their distance from cars, and try to overtake less. On the other hand, alcohol intoxicated drivers will underestimate their impairment, and will even drive more aggressively compared to sober drivers. A year after the Sewell analysis, a study was completed that seems to agree with their findings. In 2010, a double-blind, placebo-controlled study of 21 heavy cannabis users was conducted, rating each individual’s performance on tasks that tested their ability to track, make quick decisions, multitask, and react to a stop. This study found that marijuana generally did not affect task performance, concluding that “heavy cannabis users develop tolerance to the impairing effects of THC on neurocognitive task performance.”

These studies help explain the surprising results of the NHTSA study, and together, they show that DUIM may not be the public safety hazard that it is often thought to be. However, there are concerns that legalization will change the landscape of marijuana use, causing both an overall increase in DUIM related crashes, along with an increased crash risk by creating new users who are unable to successfully compensate for their intoxication. This concern is not without merit, but it cannot be expressed with certainty either.

The DMV has found that out of fourteen states that have allowed access to medical marijuana, three of them showed an increase in DUIM crash rates from the time of access to 2009. California was one of these states, showing an increase in 2.1 percentage points for fatal crashes where a driver tested positive for marijuana intoxication. This may seem insignificant, but it was a 196% increase. However, this uptick occurred in 2004 when medical marijuana was initially decriminalized, and there was no significant growth for 6 years after. From these results, the DMV suggested that medical marijuana is simply providing more access to a stable population of patients rather than creating new users. If the effect of legalization is to follow the same pattern, it will not create an explosion of new, inexperienced users, but it will increase access for experienced users, the ones who have shown the ability to drive safely in experiments and studies.

More importantly, if the goal of DUIM policy is to reduce crash risk, an increase in the total number of DUIM related crashes does not show that there is an increased risk of crashing. The DMV study explicitly states that determining the crash risk of DUIM was neither the intent nor purpose of the study. Accident totals were not adjusted for the increased use of marijuana in states where medical marijuana was allowed. Greater access to marijuana increases the number of people who are intoxicated, and when those people get into accidents, there is an increase in accidents involving marijuana intoxicated drivers. Confused? Here is an analogy: If there is greater access to yellow shirts, then an increase in accidents involving drivers in yellow shirts is likely to occur (provided that people want to wear yellow shirts). It does not follow that wearing a yellow shirt causes accidents, and similarly, the DMV results establish nothing about the actual risk of crashing.

The NHTSA study, on the other hand, was purposefully designed to discover such risk, and it found that drivers intoxicated on marijuana do not have a heightened risk of accidents compared to sober drivers. If the goal of DUIM policy is to reduce accidents, there must be a heightened risk to reduce. Even if marijuana is legalized, it cannot be assumed that an increased crash risk will come along with it.

It would be a shame to make the trek through all this technical, scientific data for it to merely be an academic exercise. But it unfortunately is. Questioning the necessity of increased enforcement will likely be nothing but a philosophical pursuit. It is almost assured there will be an increased focus on DUIM enforcement whether it is useful or not. In reaction to marijuana legalization, Colorado and Seattle have enacted new DUIM laws, funded training programs for their officers, and instituted new field tests for discovering marijuana intoxicated drivers. While California still awaits legalization, counties such as Los Angeles have already taken similar steps in officer training and field-testing. With legalization comes enforcement, and the state will have to design policy and procedure to prevent DUIM in a fair and just way. Many of us will also have to find a way to forget that our tax dollars are being spent on a problem that may not exist.

1. I choose to use the term DUIM here instead of using the more common term of driving under the influence of drugs (DUID). DUID is often the term used for marijuana intoxicated driving under the California Penal Code. This is because the pertinent section of the code does not distinguish between drug types other than alcohol, so all non-alcohol intoxication can be referred to as DUID. For this reason, I choose to use DUIM in order to specify that I am only talking about marijuana intoxication and not the countless other drugs that DUID can refer to.
2. California Penal Code section 23152(e)

Is Stoned Driving the New Drunk Driving?

Driving under the influence of marijuana is a criminal offense in California and will continue to be even if marijuana is legalized. Washington and Colorado, the first two states with legalized cannabis, have established laws that create a presumption of intoxication if a driver is tested for 5 nanograms of THC per millimeter of blood or higher. Although this style of law mimics DUI enforcement, it may not actually be the best practice. The active ingredients in alcohol and marijuana vastly differ in their variety and effect, and biological tests for marijuana intoxication are rife with accuracy issues. In an effort to establish best practices for testing and the laws that should apply, I will be writing a set of articles that will analyze the laws and testing procedures surrounding marijuana intoxication. Once the best procedures for testing are established, I will review various products designed to test marijuana intoxication for their accuracy, fairness, and feasibility.

My name is Eugene Yoo and I gave up a career in marketing for law school. I did so with the desire to represent people who are unable to afford a lawyer on their own. Since then, I’ve devoted my education and work experience to the issues surrounding inequality and the law. Our nation’s drug policy has always involved these issues, and it is my goal to address the overlooked or difficult subjects in drug reform without boring anyone to death. Wish me luck.