A young man works as a gardener for a state-licensed, legal cannabis farm. He spends his days watering and trimming marijuana plants. Some days he’s on packaging detail or spends hours rolling joints; other days he might transplant several hundred clones.
By the end of an eight-hour shift, his clothes, his hair and his skin have all absorbed the unmistakable smell of marijuana.
The Long-Awaited Breathalyzer
Could it be a savior for cannabis consumers, or just another way for law enforcement to target ‘stoners’?
By Patrick Wagner
When it comes to cannabis use, enforcing impaired driving laws isn’t an exact science. With marijuana laws in the U.S. and Canada being reformed, law enforcement officials continue to search for a definitive process to identify whether a driver is under the influence of cannabis.
Multiple companies have proposed solutions comparable to alcohol breathalyzers, including the latest contender, Canada-based Cannabix Technologies, which manufactures a breathalyzer with a built-in miniature mass spectrometer.
As THC is inhaled, the compound is stored in the lungs for a finite amount of time. According to Cannabix, its breathalyzer searches for traces of the drug when air is expelled into the device. The company believes results will be admissible evidence in future prosecutions and projects that a pilot device will be ready for scientific trials this fall.
California-based Hound Labs has also been researching a handheld breathalyzer for roadside testing in partnership with scientists from the University of California, Berkley. In September 2016, CEO Mike Lynn told The Cannabist that the company is targeting a launch in the second half of 2017.
“It doesn’t make any sense at all to arrest somebody that smoked last night and is no longer impaired, on the road,” Lynn told The Atlantic in a 2015 interview.
Meanwhile, Herb Hill, a chemistry professor at Washington State University, and graduate student Jessica Tufariello have spent the past four years researching another form of breathalyzer for law enforcement. Sponsors for the research say they hope to have a prototype ready for field tests in the near future.
But not everybody believes that breathalyzers and other inventions are the ideal measure for intoxication levels.
“The chemistry of alcohol is such that there is essentially no blood-brain barrier for alcohol … so what is in your lungs or blood is the same amount, typically, as what’s in your brain,” Columbia University psychology professor Carl Hart told The Atlantic in 2015. “With marijuana or any other drug, we can’t do that. We have no idea what’s in the brain based on some measure in your mouth or in your lungs.”
Although saliva tests have been developed that are capable of detecting THC within three minutes of exposure, they still fail to identify if a person is driving under its influence. Therefore, police officers might be able to determine whether a suspect has taken one toke, but there’s no reliable evidence whether they’re over the line.
As he’s driving home after work, he sees flashing red and blue police lights in his rearview mirror. Maybe it’s a busted taillight, maybe he was speeding or failed to use a turn signal. But now as he rolls down his window, the fragrance of the farm hanging in the vehicle’s cabin becomes the primary focus of the officer’s attention.
In many states that have legalized marijuana, either for medical or recreational use, the law stipulates a five-nanogram limit for THC in a driver’s blood.
While Washington and Colorado both have these limits, Oregon does not, instead putting discretion in the hands of the officer. Pennsylvania, which just recently legalized medical marijuana, imposed an even more restrictive one-nanogram limit, while others have zero-tolerance policies.
These laws have justifiably drawn outcry from cannabis consumers and advocacy groups. Many marijuana users would test over five nanograms even a full day or a couple days after consumption — meaning millions of Americans are vulnerable for getting a DUI even if they never drive high. And for the thousands of people that work in the legal cannabis industry, smell alone might be enough to warrant a blood test and a potential DUI. Marijuana Venture spoke with longtime defense attorney Jeffrey Steinborn about the dangers of working in the cannabis industry, even for those who follow the law.
Jeffrey Steinborn: This is the price we paid for what is passing as legalization here in Washington — anybody who smells of pot is vulnerable if they’re driving. Period.
Because the officer no longer has to look for impairment, it’s simply whether you have used marijuana, and as we know, most marijuana users are going to end up over the five nanograms for quite some time after they’ve consumed. Unimpaired drivers do so at the risk of getting a DUI.
It’s what we said before the law passed a couple years ago — the risk is that you’ll be convicted even if you’re not impaired. And if you should happen to get in an accident, or if you’re driving down the road legally, and some fool jumps out in front of you and dies on your bumper, and you’re above five nanograms, that’s vehicular homicide, whether it’s your fault or not. It’s probably a rare scenario, but it’s scary when it comes to accidents. Generally speaking, if you smell like pot, if you look like pot, if there’s pot in your car, you’re vulnerable. That’s enough for an officer to gin up what they need to take your blood.
I don’t do a lot of DUIs, but I’m told by my friends that the green DUIs are up substantially.
It’s a vulnerability that will be exploited at the discretion of the officers and we can assume that the same racial profiles will exist as before the law.
Marijuana Venture: With cannabis being legal in several states, does the smell of marijuana qualify as probable cause?
JS: The lines aren’t clear yet. Whether the smell of marijuana is probable cause has not been established really. But in the driving world, there’s a lot to be said about it; in the rest of the world, it’s still unclear.
The law puts a lot of discretion in the hands of police, which is not a good place to put it.
State THC limits for drivers
Five nanograms: Colorado, Illinois, Montana*, Washington
Two nanograms: Nevada, Ohio,
One nanogram: Pennsylvania
Zero tolerance: Arizona, Delaware, Georgia, Indiana, Iowa, Michigan, Oklahoma, Rhode Island, South Dakota, Utah, Wisconsin
*With sufficient evidence of impairment, a driver can be convicted of a marijuana DUI with a THC level below five nanograms.
Sources: Governors Highway Safety Association, Montana Department of Transportation, Chicago Tribune.
MV: From a common sense approach, what would be a couple pieces of advice to people who own or work in a cannabis-related business?
JS: Real simple: Don’t drive. And if you do drive, shower or clean up so you don’t smell of pot. If you’re in your car, put your stash in a mason jar in the trunk. Don’t let it stink up the car.
And don’t ever admit to using marijuana, at this point.
They say it’s legal, but we can’t admit to it, especially in a car, because that’s all it takes for us to have to go downtown to take a blood test or a breathalyzer, or both.
MV: From the standpoint of a business owner or manager, what can they do to help keep themselves and their employees safe from being unfairly prosecuted for a marijuana DUI?
JS: Two things. One, you provide a place to shower and change your clothes after work. That may seem silly, but that’s the way it is. It’s an inherent flaw in our law.
In the car, that’s the primary vulnerability, particularly for people working in a smelly environment. You really don’t want to be smelly when you meet a cop on the road.
And two, advise your employees that any indication of involvement with cannabis while they’re on the road, is dangerous. They should never admit to cannabis use when asked by a government official. Period.
Am I saying you have to lie to the government? Yeah, I am.
It’s called the ‘exculpatory no.’ It’s not a crime.
As soon as you admit you have any involvement with cannabis in the middle of a traffic stop, the odds are that it’s going to progress to a blood test.
MV: What if the police officer asks where you work?
JS: It’s a tough call, because you don’t want to be a jerk, but the bottom line is that it’s none of their business. If you’re pulled over for a traffic offense, your employment is private. It’s none of their business, and Americans ought to learn that.
But if you’re a minority and you give an answer like that, you’re going downtown, probably with some lumps on your head. It’s a tough situation, but as a general rule, I would not admit to cannabis use and I would avoid talking about cannabis employment, unless the laws get better. Cannabis isn’t legal — it’s just a little bit more legal here and there.
MV: It’s probably also important for people in the cannabis industry to know their rights.
JS: It is, but it’s a delicate balance, because asserting your rights is a good way to get a cop to mess with you. That’s just the way it is in this country.
The best way to let them know you know your rights is to exercise them.
‘Where do you work?’
‘That’s my business. I’d prefer not to talk about it. It’s a personal matter. Let’s talk about the reason you stopped me.’
It’s a delicate balance, and it’s always been that way. I always tell my clients, you want to assert your rights, but you understand by doing it, you turn up the heat. As a general rule, you’re not required to discuss your personal life with a cop who pulls you over for a traffic stop.