Governor Charlie Baker filed a bill this past Wednesday adopting a state panel’s recommendations to deal with police stops of drivers suspected of being impaired due to cannabis use. Even though I’m a very serious safety advocate, as a Massachusetts OUI/DWI attorney, I have one major objection to this bill, as presently written.
The Special Commission on Impaired Driving, which is part of the Massachusetts Cannabis Control Commission was created within the law that legalized recreational marijuana use. It made 19 recommendations that were almost passed unanimously, with the one dissenter on the commission being the American Civil Liberties Union (ACLU). I don’t normally agree with the ACLU on a variety of legal issues, but as a Massachusetts drugged driving lawyer I believe the ACLU’s objection here is sound. Essentially, that objection is based in scientific research that has fairly convincingly established three important points: 1) While marijuana does impair operating a motor vehicle, the level of impairment is closer to distracted driving – far less than the impairment posed by drunk driving; 2) Currently, no medical or scientific tests exist which can accurately measure a driver’s level of impairment while using marijuana, in the manner that a breathalyzer can measure with alcohol. That’s because there is no clinical correlation between the level of THC in a person’s bloodstream (cannabis’ main psychoactive compound) and a level of impairment. Most experts say that such tests are most likely three to five years away from commercial use. 3) Presently, any blood tests for cannabis can only reveal past marijuana use, not present impairment. THC remains in the bloodstream for days after use – thus, you could be blood-tested for pot use today, not have used it for several previous days, and yet it would appear “present” in your blood test. This could lead to innocent people who were not impaired at all by pot while driving, being convicted and punished.
This is extremely important because, under the bill’s proposals, if drivers who are stopped by police and suspected of being stoned, refuse police demands for a biological (blood) test, they would lose their driver’s licenses for at least six months – the same penalty for suspected drunk drivers that refuse to take a breathalyzer test. On this point, the Massachusetts ACLU chapter has commented that “Motorists shouldn’t be faced with losing their license for refusal to submit to a test that does not measure impairment,” That point, I agree with. However, as the ACLU is want to do, they also stated, “In addition, this [penalty of six month loss of drivers license if a driver refused a chemical test for pot] could exacerbate the problem of racial disparities in enforcement.” That point, I disagree with (one more example of the ACLU never seeing a public safety law that it didn’t oppose.)
Even though law enforcement officials have claimed that a combination of several “tests” would assemble a prosecutor’s case against a defendant charged with operating while impaired due to marijuana, as a Boston drugged driving lawyer, I find this argument insufficient. Any driver suspected of being impaired due to pot is going to know that chemical testing for it is very misleading, and thus very likely, and sensibly, refuse the test. The penalty of suspending that driver’s license for the next six months for that refusal, is too high.
We need to work harder and faster to develop a chemical test that can accurately and reliably measure whether a driver is impaired due to marijuana. This is critically important, given that recreational marijuana is now fully legal in Massachusetts, that nine recreational marijuana stores have opened since November, and that more will open, soon.
I want our roadways to be as safe as anyone else. But let’s make them that way in a fair and rational manner. Otherwise, you could use a small amount of pot 4 or 5 days ago, refuse submit to a police request for a blood test today, and lose your license for the next six months.