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per se

  • by Paul Armentano, NORML Deputy Director June 11, 2013

    Oklahoma Gov. Mary Fallin has signed legislation, House Bill 1441, into law that criminalizes drivers from operating a motor vehicle if they have any detectable amount of THC and/or its inactive metabolites in their blood, saliva, or urine. Under such internal possession statutes, known as zero tolerance per se laws, a motorist who tests positive for the presence of such compounds is guilty per se (in fact) of a criminal traffic safety violation, regardless of whether or not there exist supporting evidence that the defendant was behaviorally impaired by such compounds.

    Residual, low levels of THC may remain present in the blood of occasional consumers for several hours after past use and for several days in habitual consumers — long after any behavior-inducing effects of the substance have worn off. The inert carboxy-THC metabolite, a commonly screened for byproduct of THC, possesses a longer half-life in blood and also may be present in the urine of daily cannabis consumers for several weeks, or even months, after past use.

    Oklahoma will become the 11th state to impose such a strict liability per se standard once the law takes effect on October 1, 2013. It is the third state this year to amend its traffic safety laws to include either per se thresholds or presumptive limits for cannabinoids.

    Ten additional states – Arizona, Delaware, Georgia, Illinois, Indiana, Iowa, Michigan, Rhode Island, Utah, and Wisconsin – already impose zero tolerance per se thresholds for the presence of cannabinoids and/or their metabolites.

    Five states impose non-zero-tolerant per se thresholds for cannabinoids in blood: Montana (5ng/ml — the new law, HB 168, signed in April, takes effect on October 1, 2013), Pennsylvania (1ng/ml), Ohio (2ng/ml), Nevada (2ng/ml) and Washington (5ng/ml).

    Last month, Colorado lawmakers also approved legislation, effective as of July 1, 2013, stating that the presence of THC/blood levels above 5ng/ml “gives rise to permissible inference that the defendant was under the influence.”

    However, according to the United States National Highway Transportation and Safety Administration (NHTSA): “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. … It is inadvisable to try and predict effects based on blood THC concentrations alone.”

    In addition, a 2013 academic review of per se drugged driving laws and their impact on road safety found “no evidence that per se drugged driving laws reduce traffic fatalities.”

    NORML argues that it is inadvisable to infer behavioral impairment based on the presence of cannabinoid levels alone — a position that we outline here, here, and in public testimony here.

  • by Paul Armentano, NORML Deputy Director May 22, 2013

    A Michigan traffic safety law that prohibits the operation of a motor vehicle by persons who possess any presence of THC in their blood, regardless of whether or not they are behaviorally impaired by the substance, may not be strictly applied to state-qualified medical cannabis patients. So decided the Michigan Supreme Court on Tuesday in the case People v Koon.

    In a unanimous opinion, the Court determined that legal protections extended to state-qualified patients under the Michigan Medical Marihuana Act, enacted by voters in 2008, supersede the state’s zero tolerance, internal possession law. As a result, the Court determined that state prosecutors must establish that authorized patients charged under the statute are actually impaired by their cannabis use in order to gain a DUI criminal conviction.

    According to the syllabus of the Opinion:

    “The MMMA [Michigan Medical Marihuana Act] does not define what it means to be ‘under the influence,’ but the phrase clearly contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person. Thus, the MMMA’s protections extend to a registered patient who internally possesses marijuana while operating a vehicle unless the patient is under the influence of marijuana. The immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marijuana in his or her system but is not otherwise under the influence of marijuana inescapably conflicts with MCL 257.625(8) [the state's zero tolerance per se DUI law], which prohibits a person from driving with any amount of marijuana in her or system.”

    The state’s zero tolerance per se drug law remains applicable to non-patients. Under such laws, motorists are guilty per se (in fact) of a criminal traffic safety violation if they engage in the act of driving while detectable levels of certain controlled substances or, in some cases, their inert metabolites (byproducts) are present in the defendants’ blood or urine. Proof of actual impairment is not a requirement for a conviction under the law.

    To date, ten states — Arizona, Delaware, Georgia, Illinois, Indiana, Iowa, Michigan, Rhode Island, Utah, and Wisconsin — have enacted legislation imposing zero tolerance per se thresholds for the presence of cannabinoids and/or their metabolites. (State-authorized medical cannabis patients in Arizona and Rhode Island are exempt from prosecution under these per se statutes unless the state can provide additional evidence of psychomotor impairment.)

    Five additional states impose non-zero-tolerant per se thresholds for cannabinoids in blood: Montana (5ng/ml — law takes effect on October 1, 2013), Pennsylvania (1ng/ml), Ohio (2ng/ml), Nevada (2ng/ml) and Washington (5ng/ml). Most recently, Colorado lawmakers approved legislation stating that the presence of THC/blood levels above 5ng/ml “gives rise to permissible inference that the defendant was under the influence.” State-qualified patients in Colorado, Montana, and Nevada are not provided legal exemptions from these statutes, although legislation is presently pending in Nevada to do so.

    NORML believes that it is inadvisable to infer behavioral impairment based on the presence of blood/cannabinoid levels alone — a position that we outline here, here, and in public testimony here.

    Such caution is similarly expressed by the United States National Highway Transportation and Safety Administration, which acknowledges: “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. … It is inadvisable to try and predict effects based on blood THC concentrations alone.”

    A 2013 review of per se drugged driving laws and their impact on road safety found “no evidence that per se drugged driving laws reduce traffic fatalities.”

  • by Paul Armentano, NORML Deputy Director January 14, 2013

    The imposition of so-called per se drugged driving laws, which create new traffic safety violations for drivers who operate a vehicle with the presence of trace amounts of certain controlled substances and/or their inert metabolites (byproducts) in their blood or urine, do not reduce incidences of traffic safety deaths.

    That’s the conclusion of a just-published study by economists at the University of Colorado, Denver and Montana State University. The study is available from the Institute for the Study of Labor (IZA) in Germany as a Discussion Paper.

    Since 1990, 11 states have passed so-called zero-tolerant per se drugged driving laws which make it illegal for one to drive with detectable levels of a controlled substance in his or her system. Five additional states have passed similar laws specifying non-zero limits for controlled substances or their metabolites. Fourteen (Arizona, Delaware, Georgia, Illinois, Indiana, Iowa, Michigan, Nevada, Ohio, Pennsylvania, Rhode Island, Utah, Washington, and Wisconsin) of these sixteen states impose these strict liability per se standards for cannabis. Recently, the White House Office of National Drug Control has recommended zero tolerant per se drug standards for all US states.

    Using state-level data from the Fatality Analysis Reporting System (FARS) for the period 1990-2010, authors examined the relationship between the adoption of controlled substance per se thresholds and overall incidences of traffic fatalities. They found that the relationship is statistically indistinguishable from zero and concluded that there is no evidence that these limits reduced traffic deaths.

    Authors reported: “Despite the fact that these laws have been touted by politicians and academics as an effective strategy for making our roadways safer, we find no evidence that they reduce traffic fatalities. … [W]e cannot determine why per se drugged driving laws do not work, and leave this issue to future researchers. However, our results clearly indicate that, as currently implemented, laws that make it illegal to drive with detectable levels of a controlled substance in the system have little to no effect on traffic fatalities.”

    In November, Washington state voters approved Initiative 502, which legalizes the private use and retail sale of cannabis to adults, but also imposes a 5ng/ml THC/blood per se limit for drivers over the age of 21. In Colorado, where voters on Election Day similarly legalized cannabis, Democrat Gov. John Hickenlooper and Republican Senator Steven King are calling for the passage of nearly identical per se cannabis legislation.

    NORML has consistently opposed the imposition of stand-alone per se limits for cannabinoids, arguing that the presence of THC in blood, particularly at lower levels, is an inconsistent predictor of behavioral impairment, particularly in more frequent consumers who may potentially test positive for trace, residual THC levels in their blood for periods of time exceeding any period of acute impairment.

    Operation of a motor vehicle while under the influence of cannabis is already a criminal offense in all 50 states. However, in order for one to gain a criminal conviction under most state DUI laws, prosecutors must prove that a motorist recently ingested cannabis and that doing so prohibited him or her from driving safely.

    Full text of the study, “Per Se Drugged Driving Laws and Traffic Fatalities,” is available online here. A separate paper previously published by the same authors reported that the passage of statewide medical marijuana laws is associated with decreased incidences of traffic fatalities.

  • by Erik Altieri, NORML Communications Director October 18, 2012

    At this year’s NORML Conference, which was held the first week of October, much emphasis was placed on the upcoming legalization initiatives in Washington, Colorado, and Oregon. One of the featured speakers was former NORML Board Member and writer for The Stranger in Washington, Dominic Holden. Dominic delivered an impassioned speech defending Washington’s marijuana legalization initiative, I-502, and spoke at length at the importance of winning initiatives and how we can progress towards full legalization in America.

    You can watch the video below:

    “The first [complaint of the opposition] is they don’t like a provision…that says if you have 5ng active THC in your blood for every mL of whole blood then you are guilty of DUI.

    What the opponents have been saying, is that someone who has used marijuana, a regular marijuana user…a medical marijuana user, will test positive for exceeding that level a day later, two days later, a week later. Well guess what? They don’t have a single f***ing scientific study to back them up. In fact, the science proves them wrong. What science shows is the vast majority of marijuana users drop below that 5ng level within a few hours and none within 12-24 hours and certainly not a day later, two days later, a week later. Their argument is fundamentally flawed, because it’s a lie.

    They are also concerned about a federal challenge, they say, “If we pass I-502 the federal government is going to challenge us on legalizing pot.”

    News Flash: That’s the damn point.”

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    Expect much more video coverage of this year’s NORML Conference in the coming days and be sure to visit www.newapproachwa.org to learn more about the effort to tax and regulate cannabis in Washington State this November.

  • by Paul Armentano, NORML Deputy Director April 25, 2012

    Marijuana law reform legislation still remains pending in several this 2012 legislative session. Is your state among them? Find out here.

    More importantly, have you taken the time to call or write your state elected officials this year and urged them to support these pending reforms? If not, NORML has provided you with all of the tools to do so via our capwiz ‘Take Action Center’ here.

    Below is this week’s edition of NORML’s Weekly Legislative Round Up — where we spotlight specific examples of pending marijuana law reform legislation from around the country.

    CALIFORNIA: State lawmakers have taken action in recent days on a number of important marijuana law reform measures. Below are some highlights:

    1. Assemblywoman Nora Campos has withdrawn legislation, AB 2465, which sought to mandate that state-qualified medicinal marijuana patients obtain a state-issued identification card. Under present law, patients may voluntarily obtain county-issued identification cards, but no such mandate exists in the language of Prop. 215. California NORML, among other groups, objected to AB 2465 on the basis that it infringed upon patients privacy and was likely unconstitutional.

    2. On Thursday, April 19, Assemblywoman Norma Torres amended AB 2552 to remove language that initially sought to expose marijuana consumers to enhanced DUI penalties based solely upon the presence of THC in their blood. Assemblywoman Torres struck this language after NORML and others roundly criticized the legislation as being discriminatory toward cannabis consumers, including those who use the substance therapeutically in compliance with state law. NORML argued that AB 2552 was unnecessary, unscientific, and would have exposed cannabis consumers to wrongful convictions. NORML wishes to thank those of you who took the time to contact your member of the Assembly to help us successfully derail AB 2552.

    3. Last week, the Senate Public Safety Committee approved Sen. Mark Leno’s bill (SB 1506) to defelonize cases involving the simple possession of drugs (including hashish) to a misdemeanor offense. (Marijuana possession is already decriminalized under state law to a non-criminal infraction.) This measure is sponsored by the Drug Policy Alliance and the ACLU, and is supported by California NORML.

    4. Finally, two separate bills seeking to clarify the production and distribution of medicinal cannabis under state law are moving forward in the legislature. On Tuesday, April 17, members of the Assembly Committee on Public Safety voted 4-2 in favor of AB 2312. The bill now awaits action from the Assembly Appropriations Committee. AB 2312 seeks to establish a state regulatory system for medical cannabis under the Department of Consumer Affairs. Under this proposal, medicinal cannabis dispensaries would become state-licensed. It would also require cities and counties to allow at least one marijuana dispensary for every 50,000 residents – unless local voters specifically approve a ban or tighter restrictions.

    Separate legislation in the state Senate, SB 1182, was heard and approved by the Senate Committee on Public Safety on Tuesday, April 24. SB 1182 seeks to bar from state prosecution those establishments that operate within the state Attorney General’s 2008 written guidelines for marijuana cooperatives and collectives. It further states, “This bill would exempt those entities and persons from criminal prosecution or punishment solely on the basis of the fact that they receive compensation for actual expenses incurred in carrying out activities that are in compliance with those guidelines.”

    Supporters of these measures believe they will provide California dispensaries, the public, and law enforcement with needed clarity regarding how and where such facilities may operate. Doing so may also limit the federal government’s ongoing interference in California’s medical marijuana operations.

    You can read more about AB 2312 and SB 1182 via NORML’s ‘Take Action Center’ here or by contacting California NORML.

    CONNECTICUT: Lawmakers in a pair of Committees in recent days voted in favor of Raised Bill 5389, which allows for the limited legalization of medical marijuana by qualified patients. The full House of Representatives is expected to vote on the measure imminently. [**UPDATE: ON WEDNESDAY, APRIL 26, THE FULL HOUSE PASSED THE MEASURE 96-51. THE MEASURE NOW AWAITS ACTION BY THE SENATE.] If you live in Connecticut and wish to receive future e-mail updates on the progress of this legislation and what you can do to assure its passage, please contact Erik Williams, Connecticut NORML Executive Director at: ewilliams@campaignswon.org.

    NEW HAMPSHIRE: On Wednesday, April 25, members of the New Hampshire House of Representatives voted overwhelmingly 236 to 96 in favor of Senate Bill 409, which would allow for the limited legalization and cultivation of medical marijuana. The super-majority approval came following renewed veto threats by Democrat Gov. John Lynch.

    SB 409 allows qualified patients to possess up to four cannabis plants and/or six ounces of marijuana for therapeutic purposes.

    According to an MPP legislative update, the bill is expected to be referred to a second House committee for further consideration before returning to the Senate for a concurrence vote.

    The Senate concurrence vote is pivotal. In March, member of the Republican-led New Hampshire State Senate voted 13-11 in favor of Senate Bill 409. (You can watch lawmakers reaction to the vote here.) Support from three additional senators will be necessary to override the Governor’s expected veto. Please check NORML’s ‘Take Action Center’ for updates or visit NH Compassion here.

    If Connecticut and New Hampshire both enact medical marijuana legislation this year, they will become the 17th and 18th states to do so since 1996.

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