The media in Washington State are trumpeting the headline “Marijuana DUIs spike following legalization.“ As TV news station KXLY in Spokane, Washington, reported, the Washington State Patrol’s Toxicology Lab produced 988 THC-positive tests from drivers in 2012, then 1,362 THC-positive tests in 2013.
“The state numbers for 2014 aren’t in yet, however the Spokane County Prosecutor’s Office is sure when they do, there will be another increase,” writes reporter Allie Norton. “The number of cases from the first part of this year was on the verge of surpassing last year’s amount. That was even before marijuana hit retail stores, so we could easily see more than double marijuana DUIs from last year.”
This kind of hysteria is sure to be seized upon by prohibitionists nationwide in their campaigns to forestall the inevitable marijuana legalization in your state. We really have no idea whether more people are driving under the influence of marijuana; all we know is we’re catching more of them. A more accurate headline would be “Marijuana DUI prosecutions spike following legalization.”
Think of it this way: if a fisherman comes back from the river one day with two fish, then the next day he comes back with twenty, it doesn’t necessarily mean there are more fish in the river. He may have just traded in his fishing pole for a net.
Prior to legalization in Washington State, there was an impairment standard for a marijuana DUI. A cop would do a sobriety test, rule out alcohol, get a blood draw, and that would all go to trial where maybe there’d be a DUI conviction if they could prove the driver was, indeed, impaired. Cops had a fishing pole and would catch a couple of fish here and there.
After legalization in Washington State, the law included a 5 nanograms of active THC per milliliter of blood per se impairment standard. A cop will do a sobriety test, rule out alcohol, get a blood draw, and if it comes up five or greater, that’s a guaranteed DUI conviction, whether the driver was impaired or not. Cops now have a net and are pulling in more fish.
Since 5 nanograms is an absurdly low level of active THC for a regular marijuana user, many people are subject to being guilty of DUI for merely driving. No level of THC is scientifically accurate at matching how high someone is — those new grandma tokers are sure to be stoned at 5 nanograms, while Snoop Dogg could give up weed yesterday and be over 5 nanograms tomorrow. All this system has proven is that when you give cops an automatic-guilt target to shoot for, they’ll aim for it.
Even the trooper quoted in the story alludes to this phenomenon. “You’re more in tune to be looking for it nowadays,” said the trooper, adding that making DUI arrests is “what we’re out here to do.” Whether “looking for it” refers to drivers exhibiting signs of impairment or signs of being a marijuana consumer is open to interpretation. It makes you wonder, though, if the 5 nanogram per se DUI law was supposed to deter so-called stoned driving, why are DUI arrests going up?
As these arrests go up, the cops are catching more minnows than tuna in their nets. Remember those 988 THC-positive tests from 2012? Of those, 62 percent of them were at the 5 nanogram limit or over — back when there was no 5 nanogram target to aim for. In 2013, of those 1,362 THC-positive tests, only 53 percent were over the 5 nanogram limit. In 2012, the average THC concentration was 6.2 nanograms and the maximum was 90 nanograms; in 2013 it was down to 5.2 nanograms and a maximum of 77 nanograms. If the drivers the police are catching are less stoned, why are they catching more of them.
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