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Michael A. Gottlieb, P.A.
“Out of the Box” Defense Strategy
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The problem with trying to legislate THC levels

Throughout the United States right now there is a fierce ongoing debate. Should marijuana be legal? If so, for what purpose - medicinal or recreational? Perhaps both. Here in Florida, where marijuana use is strictly illegal no matter how you use it, that debate continues.

For those states that have legalized marijuana, such as Colorado, Washington and Oregon, another legal issue has recently arisen. How does the state know when a driver is too impaired to operate a motor vehicle due to marijuana use? The issue seems to be that no scientific standard exists in terms of law enforcement. This is a serious legal issue for all states, especially if they are considering legalizing marijuana.

Not all chemicals are created equal

Currently, those suspected of driving under the influence of THC, the psychoactive ingredient in marijuana, are treated similarly to drivers who have high blood alcohol content. However, unlike alcohol consumption, researchers currently cannot determine what level of THC would make it dangerous to operate a motor vehicle, even after rigorous testing.

Alcohol has a similar impact on everyone who consumes too much of it. Many studies over the years have shown how much alcohol it takes before an average driver becomes impaired, hence the .08 blood alcohol content limit imposed by many state DUI laws, including Florida's. Measuring THC levels in someone's blood is a much more complex issue.

For one thing, THC can be detected weeks after someone has stopped using marijuana. By contrast, the human body immediately begins processing and removing alcohol once it's consumed. For another, marijuana affects each individual differently, and the level of impairment depends on a variety of factors. In fact, most marijuana products used by people are a blend of various chemicals. These other ingredients can have a much greater impact on a person's ability to operate a motor vehicle than just THC, but these chemicals are usually not measured.

Proponents are taking action

In states where marijuana use has been legalized, THC thresholds appear to have been arbitrarily set by legislatures. This is neither rational or just, since people who may not actually be impaired could be convicted for DUI. Various lobbying groups, such as the Automobile Association of America (AAA), have begun questioning these limits. AAA is concerned that innocent drivers are being unfairly unpunished while those that may be impaired due to marijuana use are not.

The bottom line

If states continue to use arbitrary THC levels as the standard measure for DUI enforcement, it will eventually be challenged in a court of law. Of course, such challenges may come too late for some, which only underscores the importance of hiring a skilled criminal defense lawyer if you are stopped for driving under the influence of any type of controlled substance.

In short, marijuana use is not the same as alcohol consumption. If states want to enforce DUI laws in terms of marijuana use, a better measure must be instituted.

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