AB 2500, the law that would have made trace amounts of THC metabolites found in a driver’s blood stream subject to DUI charges, failed in the California Legislature last week. An amendment to the law was also rejected, which tried to establish a “per se” measure of impairment with 2 nanograms or more per milliliter.
Marijuana advocates emphasized that THC metabolites can stay in someone’s system for days. Consequently, advocates worried that marijuana DUIs with specified nanogram limits would subject medical marijuana users to prosecution, even if they had used cannabis days earlier – and were therefore, not “high” at the time of driving.
The Issue with Assigning Levels of Impairment for THC
The real issue was this: toxicology experts, such as Drug Recognition Experts (DREs), recognize the limitations when trying to assign levels of impairment based on toxicology levels. For example, toxicology cannot produce "per se" proof of drug impairment – excluding alcohol. Therefore, an expert cannot simply look at toxicology levels of marijuana found in the blood or urine, like alcohol, to determine if someone is under the influence.
That is exactly what AB 2500 was trying to do. California has a per se statute for driving under the influence of alcohol, VC 23152(b). The statute reads:
(b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.
The per se measure the State was trying to legislate under AB 2500 for marijuana DUIs was unscientific and could have imposed severe sanctions on motorist through DUI convictions. More importantly, DUI laws in California are predicated on impaired drivers – that is, drivers who are impaired either through their behavior, VC 23152(a), or by the presumption of impairment, VC 23152(b).
If experts have not been able to determine per se impairment based on marijuana toxicology levels, the State should not seek to pass this type of legislation.
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