You wouldn’t know it from a Cheech and Chong video, or any of the “Animal House”-like stereotypes out there — but driving high may be more dangerous than it seems.
That’s what police and transportation officials have found in Colorado and Washington since their recreational marijuana laws took effect.
Both states have seen their number of Driving Under the Influence charges skyrocket, and continue to see marijuana-related crashes and fatalities pile up.
Oregon public safety officials now are bracing for the same trend.
“Everybody’s worried, for sure,” says Deena Ryerson, Oregon’s assistant attorney general and Oregon’s DUII (Driving Under the Influence of Intoxicants) resource prosecutor. “The statistics in Colorado and Washington are very clear. There was a marked increase in marijuana-related DUIs. We have to assume it’s going to be the same in Oregon.”
Sgt. David Abrahamson, who oversees the Portland Police Bureau’s fatal crash team, also is concerned.
“I think we’re going to see a lot of fatals and crashes in the next few years,” he says. “That’s just sad. From my perspective, it’s tough knocking on that door at 3 or 4 a.m. and saying ‘Look, your loved one passed on.’”
Dealing with drivers under the influence of marijuana — often in combination with alcohol and other drugs — is nothing new for police, or the courts.
What will be new, officials say, is the number of people who will be using recreational marijuana for the first time since college or ever, especially once sales become legal in Oregon on Oct. 1.
Things are especially hazy for law enforcement because Oregon’s pot law has one major difference from Colorado and Washington’s: There is no legal limit for marijuana-impaired driving, like the 0.08 blood-alcohol limit for liquor.
Both Colorado and Washington have set a legal limit of 5 nanograms of THC in the bloodstream.
But Oregon officials say that number is arbitrary, and instead take the stance that “impairement is impairment.”
“We want to make this fit into the alcohol box, but it is not alcohol. It’s a totally different substance,” says Dan Estes, the impaired driving manager for the Oregon Department of Transportation.
So how do police determine whether to issue a DUII for marijuana?
There are three ways: breath, blood or urine.
Breathalyzers don’t work for pot (not yet, anyway — a Washington State University effort is underway).
Police in Colorado and Washington rely on blood tests, which a judge must issue a warrant for.
The blood test reveals the presence of psychoactive substances and can be an objective measure to back up officers’ observations in court.
In the majority of DUII cases in Oregon, however, police do not rely on blood tests.
Those are reserved for the most serious, fatal crashes, because the state crime lab doesn’t have the capacity, Ryerson says.
Instead, Oregon cops are left testing drivers’ urine.
But the method has its weaknesses.
“Urine (testing) can tell if they’ve smoked in the last 30 days,” Estes says. “It doesn’t prove impairment at the time of arrest. That’s the trouble.”
Because of its unreliability, Oregon public safety officials fall back on the DUII statute language, an officer’s observation of whether the driver is “adversely affected to a noticeable or perceptible degree,” Estes says. “It’s not a number.”
Estes says being able to add blood testing to the state’s implied consent statute, and having the capacity in the state crime lab to test blood in more DUII cases would make a “tremendous difference.”
A bill in the state Legislature this past spring tried to add blood to the statute but failed. It’ll take more public education, Estes says, as policymakers come to understand the issue.
Ryerson is glad Oregon law doesn’t set a legal limit for drivers. She said Oregon took lessons from Colorado and Washington, where police say the blood test result often contradicts the behavior of the driver and presents a confusing case in court.
A driver can be “high as a kite,” Ryerson says,” but still have a blood test lower than the legal limit, because 90 percent of THC in a person’s bloodstream drops after the first hour of smoking.
It then moves to the brain, binds to fat cells and reaches its peak of impairment — but may not necessarily be detected in the blood.
So the 5 nanograms threshold is misleading, Ryerson says: “There’s no one level you can say, ‘OK, this is impairment.’ We don’t want one number.”
The thought that driving while high presents a big danger is enough to make most people snicker. Many attest it’s safer than driving under the influence of alcohol. Some studies (see sidebar) downplay its effects.
But police, who’ve seen impaired drivers meet tragic fates, say the consequences are too serious to gamble with.
Drugs, including alcohol, “affect people’s judgment of their own ability,” says Oregon State Police Sgt. Evan Sether, who runs the state’s Drug Recognition Expert program.
“People don’t feel intoxicated, don’t feel impaired, because their mind is impaired. There’s not a clear line when it comes to marijuana. It’s a very difficult issue.”
On Portland’s roads, 60 percent of all fatal crashes include at least one party that is impaired, says Abrahamson, Portland’s fatal crash team supervisor.
“Traffic safety is one venue that affects everybody from all walks of life, every socioeconomic group, all ethnic groups,” he says.
Combating stoned driving “needs to be a combined effort on all platforms — judicially, education, community level, law enforcement, department of transportation.”
In Oregon, there are about 20,000 DUII arrests across the state in a given year. About 10 percent of DUII cases involve drugs.
Courtney Popp, Washington state’s traffic resource prosecutor, has watched the evolution of her state’s recreational marijuana law since it took effect in December 2012.
She says it’s been an uphill battle educating people that getting behind the wheel after smoking or using marijuana is is more serious than it might seem.
“It’s a nightmare,” she says. “There’s a difference between ‘Should this drug be legal?’ and ‘Is it safe to drive impaired on marijuana?’ Those issues have all been rolled into one.”
A lot of people don’t recognize that a lot of marijuana is more potent than it was five or 10 years ago, Popp says, and don’t have a good handle on how it will affect their body, as people generally do with alcohol.
The use of butane hash oil, edibles and other forms of the drug complicates the picture. “It’s definitely a little terrifying that’s what’s out there,” she says.
Washington state has data pre-legalization and post-legalization. In 2009, 18 percent of DUI drivers in the state tested positive for THC; since 2013, it spiked to 25 percent.
Then again, when recreational sales began in Washington last July, the marijuana-related DUI rate rose to 40 percent of all DUIs.
Colorado has had a similar experience.
Denver Police reported 74 DUI arrests in 2013, 28 of them involving marijuana. That spiked to 120 in 2014, 61 involving marijuana. Sixty percent were marijuana alone; 40 percent were combined with other drugs.
Statewide, Colorado doesn’t have data on pre- and post-legalization, but has seen a slow rise in pot-related cases.
In 2014 the state saw 12 percent of its DUIs related to marijuana; this year, so far, there’s been an uptick to 14 percent, according to Colorado State Patrol Sgt. Rob Madden.
Yet the data doesn’t show the whole picture, officials say.
Marijuana use is vastly underrepresented since the typical gap between traffic stop and blood test — including the transport, evaluation and warrant process — takes between two to four hours. By that time, most of the THC has left the bloodstream.
The biggest change since pot became legal in Colorado, Madden says, is a general acceptance of it.
“We’re no longer seeing people hide it when we stop their vehicle,” he says.
Case in point: On a recent traffic incident Madden recalls stopping two men in a vehicle for speeding on a major highway, and “they had their bong seatbelted in the backseat. The passenger had been partaking quite a bit.”
Once Madden says he determined the driver hadn’t ingested, “the marijuana wasn’t an issue,” he says. He cited the driver for speeding and sent them on their way.
“It’s just different. That’s the reality now. The driver and passenger weren’t hiding anything.”
Since Oregon police can’t rely on urine tests alone, police have been focusing on ramping up their training to recognize marijuana-impaired driving.
Oregon State Police has expanded its Drug Recognition Expert training, open to officers statewide through an application process.
The intensive three-week course teaches up to 24 officers at once and is typically held once a year; now a second session will be offered in late August due to increased demand and grant funding.
Since 1995 about 200 officers throughout the state are now trained as Drug Recognition Experts, geographically dispersed so they can respond to a suspected DUII driver as needed.
Using a series of tests, the Drug Recognition Expert evaluates the person’s mental, physical and clinical condition to determine if they’re impaired, whether it’s drug-related or medical, and what drug or combination of drugs are at play.
In 90-95 percent of Drug Recognition Expert cases, urine is sampled, Sether says.
“Any sample — breath, blood or urine — has potential value somehow,” Sether says. “We have to understand the limits of everything we have.”
There’s a classroom portion as well as a field test, involving recruiting volunteers from downtown Portland to be evaluated.
“DREs and instructors go out in pairs and contact people in parks, streets, have conversations,” Sether explains. “Does the person appear to be drug impaired? We explain what we’re doing and ask if they’re willing to help us out.” The volunteers need not give their real names, and are screened to make sure they don’t have psychiatric issues and are not too drunk — under the 0.08 blood alcohol limit.
They sign an implied consent form, and police have seen the same people for years in a row who are genuinely interested in helping out.
“We tell people, we’re not using this for simple possession cases, we want it in the context of impaired driving.”
At the last training, police offered water, Gatorade, sandwiches and the chance to spend time in an air-conditioned room. “We try to treat people with the utmost respect,” Sether says. “It’s been very successful. … We see the human aspect of drugs, drug abuse, addiction, treatment. They have the opportunity to see officers with that level of humanity, too. Both sides walk away with a greater understanding.”
To become certified, officers must pass an eight- to 10-hour written test, and be recertified every two years.
Besides the Drug Recognition Expert training, officers statewide all have had initial training in field sobriety tests, and a state-required course on drugs and impaired driving.
They’re getting refresher courses as needed, and, the state just secured funding for a second traffic safety resource prosecutor, to handle marijuana-related cases.
The state is still in negotiations with the state Department of Justice to sign off on the hire.
The state also is working to streamline the process for high-visibility enforcement events, like Christmas or the Super Bowl, the county fair or a concert, when a jurisdiction might need more presence on the road to combat drunken and drugged driving.
“It’s not marijuana-specific, but our position is ‘impairment is impairment,’” Estes says. “Our officers are going to be trained.”