Questionable Methods for Screening Pot Users in OK

Oklahoma’s new driving-under-the-influence law has pot users and marijuana advocates scratching their heads, opposed but unsure whether it might carry good news as well as bad.

Gov. Mary Fallin recently signed House Bill 1441, a law that deals with routine traffic violations. Most of its provisions apply to cases of drunk driving and DUI license revocations.

Pot DUI Checkpoint
Oklahoma is utilizing a checkpoint for pot that may used flawed methods.

But an amendment tucked into the bill has some weed proponents angry. It provides that any driver who tests positive for a Schedule 1 drug or one of its metabolites within two hours of arrest is guilty of impaired driving. Marijuana is a Schedule 1 drug under both federal and Oklahoma law.

By passing the bill, Oklahoma becomes the 11th state to institute so-called “strict liability per se” screening of drivers for marijuana. This means those who test positive for any amount of THC or THC metabolites are “per se” or de facto guilty of drugged driving.

Drivers who fail a drug test face misdemeanor charges and up to a year in jail, plus a fine of up to $1,000. Refusing to take the test can lead to a license revocation of 180 days.

Oklahoma already prohibits driving under the influence of pot, as it does with alcohol. But before this law, the state could only prosecute drivers when it could prove marijuana actually impaired their driving.

The new law will allow prosecutors to establish drugged driving based on the levels of drug metabolites in the body. The per se approach to impaired driving is already used with alcohol, in the form of the Breathalyzer. The difference is there is no floor for marijuana – any amount will trigger criminal charges.

The big problem with Oklahoma’s testing method, according to NORML and other pro-pot policy experts, is that it’s inaccurate and can snare people who haven’t been high for hours or even days. While THC itself passes through the body in a matter of hours, it leaves behind carboxy-THC metabolites, which can linger in the bodily fluids of a regular user for weeks or even months after the last use.

Even occasional users can turn up positive results on a metabolite test long after they last smoked. NORML blasted Oklahoma politicians for their reliance on the per se approach.

“Residual, low levels of THC may remain present in the blood of occasional consumers for several hours after past use and for several days in habitual consumers – long after any behavior-inducing effects of the substance has worn off.” –National Organization for the Reform of Marijuana Laws (NORML) Website

“Under such internal possession statutes, known as zero tolerance per se laws, a motorist who tests positive for the presence of such compounds is guilty per se (in fact) of a criminal traffic safety violation,” the group wrote, “regardless of whether or not there exist supporting evidence that the defendant was behaviorally impaired by such compounds.”

The bill’s sponsor, state Rep. Mike Turner, said the state only planned to test for “active” metabolites, a point that NORML disputed.

But if Miller’s point were true, it would create a small measure of decriminalization in Oklahoma, giving pot advocates something to cheer. Drivers stopped on suspicion of impairment who test positive only for past marijuana use would not be subject to arrest.

Still, NORML suggests that even if the law is limited to active metabolites, it can lead to penalties against drivers who aren’t high.

“Residual, low levels of THC may remain present in the blood of occasional consumers for several hours after past use and for several days in habitual consumers – long after any behavior-inducing effects of the substance has worn off,” NORML said on its site.

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