13 States Have Marijuana "Per Se DUID" Statutes
Washington State’s I-502 initiative will legalize an ounce of marijuana, a pound of edibles, or 72 ounces of tinctures, create a state-licensed distribution and retail for marijuana, but also institute a “per se DUID” statute that has some marijuana activists rejecting this opportunity to legalize marijuana. In Colorado, a bill to institute a “per se DUID” that was killed last year is back in the legislature. And in the halls of the ONDCP, institution of these “per se DUID” statutes is a major policy goal of the Drug Czar.
In examining the issue, it would be helpful for everyone in the debate to have a good look at the facts. One fact that has been surprisingly omitted thus far in the debate is the fact that thirteen US states currently have “per se DUID” statutes far worse than what either Washington or Colorado are proposing.
Washington and Colorado have proposals that institute a 5ng THC/mL of blood as the per se standard. (“Per se” just means that level of THC itself is a crime, regardless of any other extenuating circumstances. Flunking the test equals guilt, no excuses.) This is active THC in the bloodstream – the psychoactive cannabinoid that gets you “high” – that we’re measuring. The “pee tests” people may be familiar with from work, parole or probation, or joining the military, for examples, are testing inactive metabolites of THC, known as THC-COOH. This is a crucial difference, as inactive THC-COOH remains detectable for days, weeks, or even months after last use of marijuana in some people, and since it is a metabolite, that tells us the active impairing THC has already been metabolized. In fact, if you had just smoked marijuana for the first time ever, there wouldn’t be any metabolites detected in your system until after you’d already been not-high for some time. In a sense, a urine test for THC-COOH isn’t an impairment test, it’s an “I was impaired some time a while ago” test. So despite any disagreements about how much or how long someone may consume cannabis and how impaired or unimpaired they may be, we must agree that the THC in blood standard is at least measuring the impairing cannabinoid.
Of all the states with per se statutes, Pennsylvania had the one closest to the new proposals. The Keystone State instituted a 5ng/mL per se DUID in 2004, since amended down to 1ng/mL in 2011. Pennsylvania also has constitutionally allowed roadside sobriety checkpoints, where police can stop and get a good look (and whiff) of every driver who passes through. The result? In 2005, there were 41,464 DUID arrests, a 5% increase in DUID arrests over 2003. Still, only 38 of 10,000 drivers in Pennsylvania is busted for DUID, a figure that is 74 in 10,000 for Washington State, currently without a per se.
Next would be Ohio. It has a 2ng/mL per se DUID that passed in 2006, plus sobriety checkpoints and a three-day mandatory minimum consecutive days in jail for failing the test. Ohio also has the greatest amount of decriminalized marijuana for personal possession; up to 100 grams (over 3.5 ounces) is considered a “minor misdemeanor”, meaning no criminal record, no jail, and a $150 fine. The result? In 2005 there were 20,126 DUID arrests; in 2007, there were 19,155 DUID arrests, a decrease of 5% over the previous year. Only 27 out of 10,000 drivers are arrested for DUID.
The worst of the states may be Georgia and Utah. There is zero tolerance in those states for any THC or metabolite, there are roadside sobriety checkpoints, there is no medical marijuana or decriminalization, and there is a mandatory minimum jail stay of a day (Georgia) or two (Utah). Plus it is safe to say there is a certain political climate unfriendly to pot smokers in both states. In Georgia, passing zero tolerance was followed by a 9.5% increase in DUID arrests (Utah data are unavailable at this time – I can’t find FBI UCR data prior to 1996.) Of all the states I could find data on, it seems Nevada has the greatest two-year increase in DUID arrests (76%), followed by Michigan (33%). Five of the states had two-year declines in DUID arrests.
It is difficult to draw perfect conclusions on this data. Different numbers of law enforcement agencies report to the FBI from year to year, that can skew the numbers. We don’t take into account increases in numbers of drivers or millions of miles driven over those two year periods. DUI arrest statistics don’t break down into alcohol vs. marijuana vs. drugs. However, based on these data, I’d find it hard to believe if, as some I-502 opponents have predicted, we see a mass increase in DUID arrests to the point where former <1oz possession stops all become DUID blood draws. Washington State had around 10,000 <1oz arrests in 2010 and 34,098 DUID arrests. Presuming the current marijuana DUIDs in that total would be busted anyway with the new law, there would have to be a 29% increase in DUID arrests over two years, all of them cannabis only, to make this nightmare come true.