A proposition to legalize pot raises DUI concerns: ‘We are going to start losing folks in astronomical numbers’

Reporting from Sacramento —  The defendant told an LAPD officer he had smoked pot five hours before he was pulled over on Melrose Avenue for driving erratically. A blood test found a significant level of the chemical THC in his system, and a drug recognition expert ruled he was too impaired to drive safely.

But a Los Angeles County Superior Court jury deadlocked on whether the young, off-duty valet had committed a crime by driving under the influence of marijuana, which he said he smokes for back pain and anxiety.

Similar outcomes are being seen all over California by law enforcement officials who say an initiative that would legalize recreational use of pot fails to properly address the issue of drugged driving.

In the Los Angeles case, 11 jurors voted to acquit. Only one juror voted to find the motorist guilty.

The jurors said they could not convict largely because there is no standard set in California law for what concentration of THC in the blood renders a driver unsafe, according to Josefina Frausto, the deputy public defender on the case.

“The jurors said that they needed a standard before they could figure out whether he was impaired or not,” she said.

As Californians prepare to vote next month on Proposition 64, which would allow recreational use of marijuana, many law enforcement leaders and prosecutors warn that the state is ill-prepared to handle an expected significant increase in people driving under the influence of pot.

Doug Villars, president of the California Assn. of Highway Patrolmen, one of several criminal justice groups to oppose Proposition 64, said it’s a big concern.

“We should get all the experts in a room before we ever enact the law and say, ‘This is what the standards should be,’ so that we who enforce the laws are given the tools to be able to remove these people from the roadways when they are under the influence of marijuana,” Villars added.

Proposition 64 would allow Californians to possess, transport and use up to an ounce of cannabis for recreational purposes, and would allow individuals to grow as many as six plants. The measure would also impose a 15% tax on retail sales of the drug.

The tax would generate $1 billion annually, including $15 million during the first five years for the California Highway Patrol to train law enforcement officers in the techniques to detect impaired driving and to establish statewide protocols and standards for identifying impaired drivers, according to a review by the state’s independent legislative analyst.

An additional $125 million would be provided through local law enforcement grants to provide additional training and technology for officers to better detect and arrest those who are driving under the influence of drugs.

Lt. Gov. Gavin Newsom, the highest elected official in the state to support the initiative, said it would help develop standards for enforcing safe driving laws.

“Tens of millions will be set aside for research and development, also on research in partnership with the California Highway Patrol on driving under the influence of drugs, which is a concern that everyone should have now as it relates to our lack of any standards and protocols,” Newsom said last month.

Law enforcement groups that oppose Proposition 64, including the California Police Chiefs Assn., the California District Attorneys Assn., the California Narcotic Officers Assn., the California Peace Officers Assn. and the California State Sheriffs’ Assn., argue that standards need to be in place before voters consider legalization.

“You are commercializing a product that is just going to put more impaired drivers on the road, worsening a problem that we already have,” said Newark Police Chief James Leal, a board member for the chiefs association.

But the initiative is also supported by some in law enforcement, including Blacks in Law Enforcement of America, Law Enforcement Against Prohibition, the National Latino Officers Assn. and Stephen Downing, a former LAPD deputy chief.

Downing, who is on the board of directors of a pot product marketing firm, Cannabis Sativa Inc., said marijuana has been used improperly by drivers for years and law enforcement could have asked for development of a blood-level standard at any time in the past. He noted Proposition 64 provides money to study the issue.

“The use of marijuana is already there,” he said. “If they are driving under the influence of marijuana, they are already doing it. My question is, why is this an issue now?”

Opponents point to a study last month by the Rocky Mountain High Intensity Drug Trafficking Area, a group of law enforcement agencies that said marijuana‐related traffic deaths in Colorado increased 48% since 2013, when that state legalized recreational use of marijuana.

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An AAA report on Washington, where recreational use is legal, found that the number of drivers involved in fatal accidents who had recently used marijuana more than doubled to 17% between 2013 and 2014.

“In the state of California we are going to start losing folks in astronomical numbers before we finally realize maybe we didn’t look at it thoroughly enough,” Villars said.

Marijuana activists point out that just because THC is in the system of a motorist involved in a fatal crash, there is no proof that it caused impairment that led to the accident.

Adding to the concern of opponents, law enforcement officers say new techniques by marijuana manufacturers and growers mean an increase in the potency of THC, the chemical responsible for most of marijuana’s psychological effects.

“What officers are seeing with THC levels being very high is they are seeing impairment being far worse than they have ever seen in the past,” Leal said.

But when officers make arrests, prosecutors can face a difficult time getting convictions. In the year that ended in September 2015, prosecutors in a special section of the Los Angeles city attorney’s office reviewed 1,125 cases of alleged driving under the influence of drugs, filed charges in 675 of the cases, but won pleas or convictions in only 248 cases, or 36% of those filed.

“The conviction rate is significantly less in these cases than in [drunk driving] cases,” said Los Angeles County Deputy Dist. Atty. Larry Droeger, whose agency prosecutes drugged driving cases in 78 cities in Los Angeles County, excluding the city of Los Angeles.

Juries want the same kind of scientific standard of impairment as exists with alcohol applied to marijuana, according to Deputy Dist. Atty. Charles Chaiyarachta.

“It’s definitely a little harder in a sense of with alcohol, there are scientific studies that have been done,” he said.

In marijuana cases, special drug recognition officers have to evaluate those arrested and make a finding that they are impaired, which is corroborated by a blood test showing active THC in the person’s blood.

Alarmed by an increase in drugged driving cases, L.A. County Dist. Atty. Jackie Lacey launched a new program to train more drug recognition officers and provide more machines to the sheriff’s crime lab to do THC tests on blood.

Still, many juries don’t buy that those steps provide enough evidence that a motorist is impaired by marijuana.

“The problem we have in prosecuting cases now is that without a set THC limit, you are really rolling the dice with the juries,” Leal said. “You are finding district attorneys are having a hard time prosecuting cases or they are declining to prosecute because they are having a harder time winning.”

He said the police chiefs support the adoption of a “per se” drugged driving law, which makes the presence of marijuana above an established level in a motorist’s body evidence of impaired driving. The chiefs support setting the standard at 5 nanograms of THC per milliliter of blood, Leal said, which is the law in Washington, Colorado and Pennsylvania. The valet driver whose case was tossed because of a hung jury had 8.4 nanograms of THC per milliliter in his system.

Leal said the lack of such a standard in Proposition 64 is a fatal flaw. The proponents of the initiative disagree.

“The initiative does not include a ‘per se’ standard because such standards have been shown to be ineffective in other states due to the fact that THC remains in a person’s system long after the impairing effects have subsided,” said Jason Kinney, a spokesman for the campaign.

He said proponents of the initiative consulted with the California Highway Patrol and decided to allow law enforcement experts to determine separately whether a THC limit should be established, based on research already authorized by the state.

The dispute has forced other groups concerned with traffic safety to pick sides. The Automobile Club of Southern California is among those that have decided to oppose Proposition 64.

“It has taken generations to educate the driving public about driving and to strengthen laws to reduce drunk driving,” the group said in a statement last month. “Proposition 64 would create new traffic-safety issues and increase the problem of impaired driving.”

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