In theory, Steven Hogg was guilty of driving while under the influence of marijuana.
Hogg lives in Eagle County, Colorado—where, unlike some other states where recreational cannabis is legal, there’s a strict standard for how much cannabis can be in a driver’s system before he or she can be stopped, arrested and charged with a marijuana-related DUI.
According to a blood test, Hogg was higher than the legal limit when he took to the road about 300 days ago. But he felt he was fine to drive—so he took his case to court, where the jury agreed and acquitted him of all charges.
Hogg is the second person in Eagle County to escape a marijuana DUI, as the Vail Daily reported recently.
His case shows the challenges of enforcing traffic safety in states where marijuana is legal for adults to consume—as well as the slippery scientific slope to determine what influence cannabis consumption has on a driver, and how to measure it.
Colorado and Washington were the first two states in the U.S. to legalize recreational marijuana for adults 21 and over in 2012.
Both states also set a threshold for how much cannabis could be in a person’s system before it was unsafe for them to drive—five nanograms of THC metabolite per milliliter of blood (5 ng/ml).
It makes sense for police who are used to enforcing drunk driving laws: if your blood-alcohol content is 0.08 or higher, you’re intoxicated and cannot be driving.
But here’s where things get tricky with cannabis.
Alcohol is water-soluble, whereas cannabis is fat-soluble. If alcohol is in your body, it’s active until it’s flushed out. Cannabis is stored in fat cells, meaning its psychoactivity can be long gone—even if evidence of its presence remains.
To add more confusion, a regular user of cannabis will have a higher residual level of marijuana metabolites, the telltale compounds that remain in fat cells after the body has broken down active cannabinoids.
A regular user may have 5 ng/ml of cannabis metabolites in his or her system or more, days or even longer after using cannabis.
And unlike with drivers behind the wheel above the ironclad rule of 0.08 for blood-alcohol content, juries are siding with drivers who exceed 5 ng/ml for cannabis.
In Hogg’s case, he “was adamant that he was not impaired, and that he wanted to exercise his right to go to trial,” defense attorney Lauren Butler told the Vail Daily.
The jury agreed, voting to acquit him after less than two hours of deliberation. They also tossed out a few additional traffic violations that prosecutors tacked on just before the trial, the newspaper reported.
Hogg, who works three jobs, admitted to being a regular user and also stated that he was not impaired.
“It was our hope and belief that the jury would be skeptical, and they were,” Hogg’s other attorney, Jim Little, told the newspaper. “Ultimately, the jury sided with us.”
Prosecutors in Colorado admit they have a problem.
“The scientific community is still studying the level at which people are too impaired to drive. The issue gets gray when dealing with regular users,” District Attorney Bruce Brown told the newspaper. “Regular users build an immunity.”
Other states where recreational marijuana is legal, including California, have yet to set a standard for marijuana-related DUIs. Cases like Hogg’s will only serve to make setting such a standard even more challenging.
Some companies have begun testing “marijuana breathalyzers,” but without an intoxication level specific to the user, they may not be any good—especially if a positive result leads to an acquittal in court.
As it is, the American Automobile Association (AAA) has called for the six states that do set a standard for stoned driving to scrap it because it’s so unreliable. But they haven’t yet, meaning this flawed laws are still on the books.
So how do you beat a marijuana DUI?
First of all: if you’re stoned, you should not drive. Even though states where marijuana has been legalized see lower rates of traffic fatalities, this doesn’t mean stoned driving is acceptable driving.
If you are high, you are impaired, and under no circumstances should anyone drive impaired.
But if you feel you aren’t impaired, and are arrested and charged anyway, consult an attorney.
Attorneys, like Butler and Little, will introduce science-based evidence supporting the contention that 5 ng/ml does not equate to intoxication for a regular user.
That said, you’ll still have to give blood or pee in a cup—meaning you’ll have to run the risk of getting the DUI before you can fight it.
In nearly every state where marijuana is legal, driving is “implied consent,” meaning the second you turn the ignition and pull onto the road, you give police the right to test your blood or urine for alcohol or other drugs.
In Hogg’s case, he went through the whole rigmarole: He was pulled over, he was tested, he was arrested—and then he was acquitted.
Look for other states to ponder this carefully while setting their own standards.
And at the same time, weigh your own choices carefully. If you don’t think you can pass a roadside sobriety test, don’t drive.
But if you can, and are willing and able to go to court, you have a chance.
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