Ambiguity, uncertainty grow out of budding precedent for state marijuana laws

Composite image with 2018 file photo a Utah Highway Patrol vehicle with overlay photo courtesy of Tatyania Larina | iStock/Getty Images Plus, St. George News

ST. GEORGE — The recent arrest of three Iowa residents passing through Utah, the driver cited for metabolite DUI, brings to light questions surrounding Utah’s medical marijuana laws.

Those three were placed under arrest by state troopers for having four pounds of marijuana in the vehicle.

Utah Highway Patrol troopers at crash on I-15 southbound near mile marker 4, St. George, Utah, Jan. 3, 2017 | File photo by Cody Blowers, St. George News

According to the police report, a Utah Highway Patrol trooper observed the trio’s black four-door passenger car traveling northbound on Interstate 15 near mile marker 63 in Iron County. The arresting officer claimed the driver was following too closely behind another vehicle, prompting the trooper to make the stop.

Approaching the car, troopers noticed “marijuana shake,” or loose marijuana leaves, on both the driver’s and passenger’s lap, as well as a “smelly proof bag” designed to reduce or eliminate the odor of marijuana, behind the front passenger’s seat.

The driver, James Michael Jackson, 30, of Adel, Iowa, was read his rights and asked how much marijuana was in the vehicle.

Jackson told police he bought three grams in Las Vegas and admitted to not having a medical marijuana card, as did the two other occupants in the vehicle. During a search, the trooper located nearly 4 pounds of marijuana in the trunk and a small amount in the passenger compartment.

All three individuals were arrested for possession with intent to distribute. Once at the police station, Jackson was given a field sobriety test. He “showed signs of use but was not impaired to the point that he could not safely operate a motor vehicle,” the report said.

Jackson told police he had smoked two hours before he was stopped and consented to a urine sample that later tested positive for THC. He was booked into jail for the felony possession offense, possession of paraphernalia, misdemeanor marijuana possession and despite not showing serious signs of impairment, was given a “metabolite DUI” charge.

The following day Iron County prosecutors followed through with just a single felony charge of possession with intent to distribute a controlled substance. Jackson pleaded guilty to the charge 11 days later.

It appears that many proposed charges specifically related to “metabolite DUI” are dropped before they are even filed gauging from the number of individuals booked into jail for the offense versus the number actually charged.

Metabolite DUI, an explanation

In Utah, drivers can be prosecuted for having “any measurable amount” of a controlled substance, or its metabolite, in their body while driving. That applies whether they are impaired or noticeably affected by the substance – similar to the circumstances in Jackson’s arrest.

A bud on a marijuana plant at Compassionate Care Foundation’s medical marijuana dispensary in Egg Harbor Township, N.J., March 22, 2019 | Associated Press file photo by Julio Cortez, St. George News

As a controlled substance is broken down by the body it produces a chemical byproduct, otherwise known as a metabolite, that is inactive and does not produce the effects of the consumed drug.

Utah state statute, however, doesn’t distinguish between having the active substance and a metabolite – specifically as it applies to DUIs. Only the byproduct needs to be present. The law also does not require that a person’s driving be impaired by the substance, Utah Highway Patrol Sgt. Nick Street told St. George News.

If a driver is pulled over and has recently smoked marijuana, he can be charged as normal with a DUI if the consumed substance impairs his ability to drive a car. Alternatively, a driver can be arrested while driving with a measurable controlled substance in their system. This is when the metabolite DUI charge is applied regardless of when marijuana was consumed.

The matter is particularly complex because marijuana metabolites can be stored in fat deposits. According to multiple sources, metabolites can remain in a person’s body for an indeterminate period, even after the active THC has left a person’s system.

Street did say if the marijuana is prescribed by a physician and the individual has a medical marijuana card, or the substance is otherwise legally ingested, then that can be used as an affirmative defense to the charge under the Utah Medical Cannabis Act as long as it is ingested and not smoked, and its use under those conditions is considered lawful.

When asked if a THC level has been established to determine if a driver is under the influence, similar to the .05 blood alcohol level for alcohol, Street said, “No, there is no set level to go by.”

Street went on to explain that much of that has to do with testing, adding that an enormous amount of funding has gone into alcohol-related research and impairment analysis, but for marijuana, little funding has been allocated.

“The legalization in many states is still new, so funding for the testing hasn’t caught up yet.”

Other states have taken steps

One of several states to set a defined THC level is Colorado, where the law specifies that drivers with five nanograms of active THC in their “whole blood can be prosecuted for driving under the influence” and officers base arrests on observed impairment, according to the Colorado Department of Transportation.

A car approaches a sobriety checkpoint along a busy street in Albuquerque, N.M., on Dec. 29, 2011. | Associated Press file photo by Susan Montoya Bryan, St. George News

Now that medical marijuana has been allowed in Utah, police are tasked with determining whether those driving under the influence of marijuana are impaired. But testing for marijuana impairment is not as straightforward and presents a host of problems.

Unlike alcohol intoxication, where the risk of having an accident has been shown to significantly increase in tandem with blood alcohol levels, there have been few studies providing evidence that the same holds true for marijuana use.

According to research by the AAA Foundation for Traffic Safety, there is no scientific evidence that “a specific level of THC in a person’s bloodstream is associated with an impaired ability to drive.”

Creating legal limits for marijuana impairment using the same methods as those used to define alcohol impairment is a flawed approach that is not supported by the research, said Marshall Doney, AAA’s president and CEO.

“It’s simply not possible today to determine whether a driver is impaired based solely on the amount of the [marijuana] in their body,” Doney said.

Issues continue to arise

In addition to a general lack of funding to properly study its effects, drug-detecting technology has limitations, according to the AAA study.

While there are tests that can determine if the THC was ingested recently or is residual, the field sobriety test that has been around for more than three decades, for instance, was designed to detect alcohol impairment and, while generally applicable, was not designed to detect the consumption of THC.

Complicating matters further, the state of Utah has yet to establish a set THC level that, by law, would separate a THC impaired driver from one that is unimpaired.

“The roadside assessment practice of the field sobriety test is still a good indicator to determine impairment, regardless of the substance used,” Street countered, adding there are tests specific to THC impairment, including a test that relates to eye convergence, or the ability to cross one’s eyes for a set period of time, which is part of the field sobriety test. If the driver is unable to perform the test, Street said, that is a good indicator of THC impairment.

Travis Christiansen, a local defense attorney, disagreed. He said the field sobriety test is designed to detect impairment caused by alcohol and can result in misleading outcomes on marijuana consumption.

Christiansen provided a different scenario, saying that a metabolite DUI charge is typically applied after an officer observes some type of irregular driving pattern, such as weaving in the lane or bumping onto the curb.

If the driver appears impaired then a field sobriety is given to determine if the driver is under the influence, followed by a breathalyzer that will show a zero if no alcohol is ingested. Further testing will follow.

If the officer detects the odor of marijuana in that same situation, however, there is probable cause to search the car and arrest the driver for possession.

“What typically happens at that point is the driver has weed in the car, which has a smell that an officer can’t miss,” Christiansen said.

A DUI metabolite charge will be applied if the driver subsequently tests positive for cannabis consumption, as is often the case if they have marijuana in the car,  Christiansen said, even if they’re not impaired at the time of the stop.

St. George Fire Department responds to a three-car collision on St. George Boulevard, St. George, Utah, Oct. 15, 2015 | File photo by Cody Blowers, St. George News

Local law enforcement trying to keep roadways safe

Lt. Dave Crouse with the Washington County Sheriff’s Office says the common goal is to keep the public protected. He says the tests serve only as “a supplement that helps the officer determine impairment.” But it’s only part of the big picture and works in combination with other factors, he says.

Crouse added that a motorist driving with any amount of THC in their system who does not have a medical marijuana card can be charged with metabolite DUI.

“But I would hope it’s not being used if no other indicators of impairment are present unless there are other factors involved,” he said.

According to Crouse, the purpose behind impaired driving enforcement is road safety. “It’s not to randomly test drivers to see if they have THC in their system.”

It may be some time before a system involving marijuana DUIs is standardized, but Street said one thing has not changed, which is how the agency approaches impaired driving.

“If a driver is impaired they are impaired, no matter what they are on.”

Court examples piling up

For one Ohio driver, the issues surrounding the metabolite DUI may have consequences that extend far beyond THC levels and field sobriety tests.

Richard Johnson, 39, of Springfield, Ohio, was charged Monday for driving with measurable controlled substance in the body and causing serious bodily injury or death, a third-degree felony, according to charging documents filed with 3rd District Court in Salt Lake City.

A crash resulting from DUI at 1740 E Foremaster Drive, St. George, Utah. Sept 6, 2014 | Photo by T.S Romney, St. George News

The charge stems from a rollover crash that took place June, 14, 2016, on eastbound Interstate 80 in Salt Lake County that killed a 16-year old passenger.

At the time of the crash, Johnson was heading east on I-80 and lost control of the vehicle that rolled at least four times before it came to rest.

Two teens sitting in the rear passenger seats were ejected, one of which died a week later from her injuries after she was removed from life support, the report said. The second teen survived.

A short time later, Johnson voluntarily submitted to a blood draw at the hospital which came back from the Utah State Crime Lab showing the presence of 2 nanograms of THC in his system, along with 8 nannograms of metabolite.

Johnson is accused of operating a motor vehicle in a negligent manner, “where the defendant did knowingly and intentionally have in his body any measurable amount of a controlled substance; to wit: THC and THC metabolite.”

The charges are considered an aggravating factor that may ultimately extend his prison sentence.

Utah not currently considering updates and revisions

For alcohol, there is a clear standard that is supported by extensive research that provides clarity and makes enforcing drunken driving laws easier.

Setting an impairment level for marijuana is anything but as a number of states say drivers should be penalized only if they are impaired by the substance, which sounds reasonable but quickly gets difficult to measure or even define, while other states have forbidden driving at any THC level.

Utah is not alone as a number of states are confronted with weak technology and limited science while grappling with setting limits, efforts that seem to have sparked a difficult question: At what point is someone too high to get behind the wheel?

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Copyright St. George News, LLC, 2019, all rights reserved.

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