As the laws surrounding the legal use of both medical and recreational marijuana begin to advance throughout the country, the procedures to determine a driver’s impairment from its use have yet to catch up with the policies.

In five of the six states throughout the nation where marijuana use is legal, law enforcement is using a driving while impaired test that has found itself under fire from the AAA Safety Foundation, the nation’s largest automobile club.

The Foundation contends that this testing, which simply uses a blood test to measure the level of THC, the active ingredient that causes the high, to determine one’s physical impairment. This flawed testing procedure, the Foundation contends, creates a threshold for the existence of THC, leaving drivers guilty if they are above the limit, and not-guilty if they are below it.  

Testing TCH — What It Can and Cannot Measure

The testing cannot measure the fact that everyone processes and metabolizes TCH differently. In fact, if someone uses marijuana frequently their THC levels may be persistently higher long after its use. Meanwhile, someone who uses marijuana infrequently – but may actually be impaired – may have a rapidly dissipating level that puts them under the “legal” limit.

The overriding issue with the THC blood test that is administered in these five states is that there is zero scientific evidence that supports the ideology that drivers become impaired with a specific level of THC in their blood. Conversely, there is also no scientific evidence to support that someone is not impaired, based on the level of THC in their blood, leaving the testing to chance based on the person being tested, how frequently they use and the quantity in which they consume. 

The act of taking a blood sample from a seemingly marijuana impaired driver requires a warrant, as well as transport to a secure location where the blood can be drawn. This means that two or more hours can go by from the time the driver is pulled over until he or she is tested. The time lost in between these two actions may allow the driver’s THC level to fall below the legal threshold.

In states where marijuana use is legal it would be impossible to expect individuals to ingest TCH, and never leave their homes in an effort to avoid possible driving while impaired charges. It is important that users, or those who are involved in an accident with someone who may be using, understand their rights and how the flawed testing could impact their lives going forward.

Should you or a loved one have any questions regarding these laws and/or the testing procedures that are currently in place, contact the Kestenbaum Law Group at (818) 275-4910 right away.