By Seth Richardson
With the decriminalization of marijuana in Colorado, prohibitionists are all atwitter over the prospect of stoned drivers flooding the highways. While drivers high on marijuana are certainly of concern, the recent kerfuffle largely ignores the fact that people who use marijuana to get high and then go out and drive have been doing so roughly since the invention of the automobile. The same thing is true of those who use other substances that impair cognition and reaction time, including alcohol, meth and prescription drugs. It’s not new ground we’re plowing here.
Colorado already has a law adequate to the task of dealing with those who drive unsafely under the harmful influence of drugs or alcohol. It says:
“It is a misdemeanor for any person who is under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, to drive a motor vehicle or vehicle.”
“Under the influence” is defined as:
“…driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.”
For trained police officers, detecting people who are substantially incapable of safe driving is little more than child’s play. They do it by observing the driving behavior, demeanor, physical appearance and responses of a suspect. Drivers who are under the influence are detected precisely because they are substantially incapable of driving safely. They weave, they ride the center-line, they sit through traffic light cycles, they drive slowly or too fast, they forget to turn on their headlights and they do all sorts of things that police officers are trained to look for. Their behaviors are so predictable that the National Highway Traffic Safety Administration (NHTSA), after decades of careful scientific study, produced a booklet, “The Visual Detection of DWI Motorists” for use by police officers. It lists 24 easily observable “driving cues that have been found to predict blood alcohol concentrations (BAC) of 0.08 percent or greater.”
This booklet is used by police all over the world, and anyone trained and certified in DUI detection can tell you long before they stop the vehicle, and without any need for a chemical test, whether or not the driver is intoxicated, and they are very rarely wrong. Indeed, in many DUI cases, at trial the District Attorney will not even present the blood or breath test because the officer’s observations alone are sufficient to prove guilt beyond a reasonable doubt. The reason the DA would keep the test out is because the various chemical tests are prone to error and mistake. A competent DUI defense attorney can often successfully challenge the accuracy of the test, which is a devastating blow to the prosecution. A prosecutor can provide rock-solid testimony by the officer proving beyond any reasonable doubt that the driver was substantially incapable of driving safely, but if the chemical test evidence is successfully impeached by the defense, it’s more than a little likely that the officer’s testimony will be rejected by a jury as erroneous or even fabricated and the defendant will be acquitted.
Drivers are most often caught through the officer’s observations of driving behavior (weaving, driving slowly, etc.) that is so egregiously bad that the officer can say with a high degree of confidence that the driver is intoxicated even without knowing the particular intoxicant or its absolute level in the blood of the driver. The observations themselves provide both reasonable suspicion to stop and probable cause to arrest long before the traffic stop ever occurs. Roadside sobriety tests and chemical tests are generally nothing more than icing on the cake for the District Attorney. What’s often misunderstood about the law is that a 0.08 BAC is a presumptive limit, but a person can be convicted of DUI if their actual driving behavior meets the “substantially incapable” standard, regardless of what or how much they have ingested. You see, it’s not illegal to have either alcohol or THC, or any other drug in your system while driving. It’s a crime if those substances actually make you substantially incapable of safe driving, whether those substances are legal or illegal and regardless of how little you have consumed. Take too much over-the-counter cough medicine and drive badly and you can be arrested and convicted, as no few otherwise responsible citizens have discovered to their dismay.
The key in both cases is the observed demeanor, appearance and behavior of the suspect, and a well-trained officer has little difficulty in distinguishing someone who is substantially incapable of safely operating a vehicle from someone who isn’t. All the officer needs to do is accurately observe and report and in most cases the suspect will be convicted based on how he behaved, not on what the absolute level of intoxicants in his bloodstream were. In fact, absent any observed intoxicated behavior, a blood test that is below the presumptive limits does not give the officer probable cause to arrest.
The standard of an individual actually being observed to be substantially incapable of safe driving is the proper constitutional standard that society ought to be adhering to, particularly when it comes to marijuana use. If the person is not observed to be substantially incapable of safely operating the vehicle, then the officer should simply release the suspect and let them go about their business, or better yet not stop them in the first place.
While the state has a valid interest in both revoking the driver’s licenses of and prosecuting drunk drivers, citizens have an important civil liberties interest in requiring the prosecutor to prove guilt beyond a reasonable doubt. Driving while drunk “per se” laws impinge on the rights of citizens to the presentation of convincing evidence that the defendant was in fact substantially incapable of driving safely. While the science stands behind the presumptive limits for alcohol, it does not do so when it comes to marijuana, which affects some people severely, and others to only a minor degree. Unlike alcohol, which has reasonably (though not absolutely) predictable effects on the vast majority of people, there is scant and contradictory evidence that marijuana impairment can be accurately predicted based only on the absolute levels of THC in the suspects blood.
In practical terms the person must actually be substantially incapable of safe driving before he can be arrested.
If a hard forensic standard for THC in the blood is imposed, defense attorneys will have a field day attacking the credibility of the science upon which the standard is based, and this will lead to fewer convictions and much higher trial costs as prosecutors will be required to retain scientific experts by the boatload in order to back up the standard set by the legislature. This will lengthen criminal trials, make them more expensive, and will persuade many more people to fight a conviction rather than admitting guilt or pleading to a lesser charge. It’s best to simply let the police do what they are good at, observing and recording unsafe driving behavior and we should base prosecutions on that evidence, not on presumptive limits.
© 2013 Altnews