Courts Confused About Marijuana DWI Standards

Elizabeth, NJ- Legalization of marijuana for medical and recreational use is spreading across the U.S. Eight states, and Washington D.C. have already legalized marijuana for recreational use, and 28 states including New Jersey allow medical marijuana sales. Even as marijuana legalization is growing; there is still confusion about when a pot user is too high to be driving and when they should be charged with DWI.

Marijuana is a Schedule I drug under the Controlled Substances Act, so it is not readily available for research. That makes it hard to develop a measurable standard of impairment for drivers suspected of being high. Scientists have determined that an individual’s THC levels rise immediately after they smoke marijuana, but there is no standard of impairment that can be used by law enforcement. With alcohol, impairment is firmly established and easily measured with a breathalyzer. There is an observable correlation between a person’s blood alcohol concentration and their driving abilities, but that is not the case with marijuana.

In the past, there have been several international studies and one study conducted by the National Traffic Highway Safety Administration that examined how THC- the active ingredient in marijuana—affects a user’s ability to drive. Those studies had similar findings with researchers concluding that marijuana slows a driver’s reaction times and leads to more lane deviations while driving, but motorists who are high are aware that they are impaired. And because they are aware of their impairment, high drivers compensate for it by slowing down and paying closer attention to their actions and surroundings.

In their study, the NHTSA notes, “THC’s adverse effects on driving performance appear relatively small.” One study cited by the American Bar Association Journal found that impairment caused by smoking pot is minimal, compared to a driver with a blood alcohol concentration between 0.01 and 0.05. In New Jersey, the legal limit is 0.08 percent.

Pinpointing marijuana intoxication is difficult for the courts because of the way it is processed by the body and person’s tolerance level. Someone who smokes regularly will test positive for THC weeks after consumption because THC is metabolized by fat cells and can remain in a person’s system for weeks long after the intoxicating effects have worn off.

Determining when a driver is high is also a challenge on the roadside, as well as in court. Because there is no measurable standard of intoxication, police must rely on observation alone. A breathalyzer is a scientifically accurate way to determine if a driver is drunk, but there is no such test for marijuana. Marijuana is much different than alcohol when determining impairment because there is no roadside test to measure a driver’s level of impairment. When police suspect a driver smoked marijuana; they must rely on the observations they make during the stop and how a defendant performs in field sobriety tests.

A recent case before the Massachusetts Supreme Judicial Court, The Commonwealth v.  Thomas J. Gerhardt, is weighing whether a field sobriety test is enough to gauge if a driver is high and should be charged with a DWI.

The defendant in the case, Thomas Gerhardt, was pulled over and arrested for DWI in Massachusetts in 2013. When approaching Gerhardt’s vehicle, the arresting officer noticed the smell of marijuana coming from his vehicle. The police officer suspected Gerhardt was high and asked him to participate in field sobriety tests.

Gerhardt agreed to the field sobriety tests which yielded mixed results. Gerhardt was capable of counting backward and reciting the alphabet, but he was unable to complete the walk and turn test satisfactorily and could not stand on one leg. Because he failed the physical tests, Gerhardt was arrested and charged with marijuana-impaired driving.

Gerhardt’s case challenges the reliability of an officer’s observations in determining if a driver is high. He argues that officers are trained to identify drunk drivers not stoned drivers and asserts there are no reliable standards of impairment for marijuana. The ABA Journal notes that in 2006 the New Jersey Supreme Court ruled “no … general awareness exists as yet about the signs and symptoms of the condition described as being ‘high’ on marijuana.”

It will be months before the Massachusetts Supreme Judicial Court makes issues their decision in Gerhardt’s case which may guide courts in other states that are trying to establish standards to decide when a person is unsafe and too high to be driving.

In New Jersey, you can be charged with driving under the influence with any amount of marijuana in your blood stream, and a conviction has all the same serious consequences as an alcohol-based DWI. If you are facing a DWI charge in Elizabeth, East Orange, Jersey City, Newark or another area of Essex County, contact my office at (973) 453-2009 to talk about your defense.