Fair testing for pot impairment presents roadblocks
One of the biggest roadblocks with legalizing recreational marijuana is how to accurately and fairly test for driving under the influence.
A person can test positive for tetrahydrocannabinol (THC), an active ingredient in marijuana, long after the effects have gone away.
Colorado and Washington made the THC limit for driving under the influence 5 nanograms of THC per milliliter of blood. However, the formula for how marijuana impairs people is complicated because of the amount of marijuana in a product and how it affects the user.
A frequent user of marijuana, for example, can trigger a positive test weeks after last smoking and not be impaired.
“When you look at drinking and driving, it’s easier for us as law enforcement to detect if someone is under the influence, because we have a Breathalyzer,” Luzerne County District Attorney Stefanie Salavantis said.
Having to analyze blood or urine to determine an impairment level is more difficult.
Officers have basic training for handling DUI cases and follow checklists to document what they observe, such as the appearance of someone who is pulled over or how they walk. These observations, along with a lab report, can be used as evidence in a DUI case.
“Based on the observations of the officer, that person’s tolerance may have been low, and they were very impaired,” Salavantis said. “These are very hard questions because each person handles drugs differently. It’s on a case-by-case basis.”
Drug recognition experts have more advanced training but there are only a few locally, so they are only called to assist with major incidents, such as a homicide by vehicle, she said.
Should marijuana be legalized, those experts are resources law enforcement likely would need to use more often.
‘We want to make sure our law enforcement is fully trained and knows what they can do when someone has medical marijuana.’
Stefanie Salavantis Luzerne County district attorney.
“I still have law enforcement coming to me saying we’re confused on what we can and can’t do,” Salavantis said. “We want to make sure our law enforcement is fully trained and knows what they can do when someone has medical marijuana.”
She said she is planning to have a training session soon with local law enforcement on the topic.
Pennsylvania is a zero-tolerance state for driving under the influence of marijuana, said Pittsburgh-based criminal defense attorney Patrick Nightingale. The metabolized after-effects are enough to warrant charges. However, he discourages prosecutors to charge based only on the presence of a test with those metabolites.
Traditional law enforcement methods for detecting impairment, such as observing erratic driving, field sobriety tests or the smell of marijuana are methods that will not implicate medical marijuana patients, who would likely register a positive test.
Efforts continue to make a Breathalyzer that easily and effectively tests for marijuana use.
Pennsylvania’s adoption of medical marijuana has gone smoothly for policing in Scranton, said city Police Chief Carl Graziano.
“In Scranton, I can say that since the medical marijuana laws have been updated, we’ve had no adverse issues with it for DUIs or anything else,” he said. “Not to the degree that would make you rethink the laws.”
Potential laws that allow for recreational marijuana could bring greater change. Local law enforcement officials urged prudence as the state considers a measure.
Hazleton police Chief Jeff Speziale has questions before he supports legalizing recreational marijuana: How will it be controlled? Where can you use it? What effects will legalization have on underage access? How does it affect human development?
Drugs are the fuel behind many crimes and marijuana is part of that, he said. Also, illegal buyers enrich and strengthen suppliers, he said.
“That fuels the underground market of illegal drugs,” Speziale said. “That hits us when the supplier becomes stronger and stronger and more brazen. That’s where violence comes into it.”
Salavantis is researching if legal recreational marijuana would displace that illegal market.
While she hopes legalization would reduce violent crime, she expects a black market still would exist with prices that undercut the legal market. States with legalized marijuana still have an underground market, she said.
A 28-year Wilkes-Barre Police Department veteran, Chief Joseph Coffay has seen the changes in perception of marijuana use.
In the past, it was vilified. Now, some people questioned by police freely admit to using it, he said.
When it comes to decriminalization of marijuana, Scranton and Wilkes-Barre officials have danced around the issue.
Decriminalization diminishes enforcement for possession of up to an ounce of cannabis for personal use to a civil or summary offense, punishable by fines. In Pennsylvania, nine cities passed decriminalization measures: Allentown, Bethlehem, Harrisburg, Erie, Lancaster, State College, Philadelphia, Pittsburgh and York.
Wilkes-Barre City Council passed an ordinance decriminalizing possession of drug paraphernalia that lets officers levy a summary charge at their discretion, freeing up policing and court resources.
However, decriminalizing marijuana never came to a vote. Wilkes-Barre’s decriminalization of drug paraphernalia allowed officers to levy a summary charge at their discretion, which frees up policing and court resources for other issues.
Councilwoman Beth Gilbert proposed decriminalization in 2016, partly because of the changing attitudes about the plant.
“I think there is a misconception that by decriminalizing, people will be smoking on the street, kids will be exposed,” she said. “But, the goal of it is just to decriminalize it and make it so that people who smoke small amounts recreationally aren’t put in prison or faced with a heavy fine. That just doesn’t make sense. … In Wilkes-Barre and across the country and state, jails are filled with people who have committed minor drug offenses — for example, marijuana — and at this point in our culture, it doesn’t make sense to punish people like that.”
Gilbert drafted an ordinance to decriminalize marijuana and said she wants to meet with Salavantis and Coffay to discuss it. She has no immediate plans to introduce the ordinance.
“We should look to see what the state does,” she said. “I’m not saying years. I see the governor making a move fairly soon, even within the next six months.”
Earlier last year, after Lackawanna County Commissioner Laureen Cummings said she was amazed that medical marijuana was being considered as a potential antidote to the opioid crisis, Scranton City Council spoke up.
Cummings derided the region’s medical marijuana industry at a May meeting and said no studies show the drug is effective. She later said she didn’t have issues with regulated medical marijuana.
Three Scranton council members condemned her comments. One member, Tim Perry, said he saw the benefits firsthand as his wife battled cancer.
“I’ll do you one better,” Perry said. “I’m in favor of actually decriminalizing it (in) the City of Scranton as well. I think it ties up our police officers. I think it ties up our judicial system and our correctional facilities. There (are) many other cities out there that are looking at this and I think it’s a waste of time and waste of money to go after these issues, just like prohibition was back in the day.”
Since his comment in May, Scranton City Council has not discussed decriminalization measures.
If the state is going to make a change, the legislature should do its homework to create a law that will not have to be frequently updated, Graziano said.
“Do it right the first time if they’re going to do it,” he said. “Certainly people have their rights to do what they want to do in their own homes, but when it infringes on other rights, that would be an issue I would certainly have. If that means increased DUIs or something like that, that would be an issue. It’s still too early to tell, even in states that have legalized.”
The Pennsylvania State Lodge Fraternal Order Of Police opposes legalization. The group points to youth use of marijuana, an unregulated market even after legalization, the lack of a reliable standard for driving under the influence and other issues as its reasons.
Local police say they will watch to see what the legislature decides. Until then, recreational marijuana remains illegal.
“We enforce the law,” Coffay said.
Luzerne County District Attorney Stefanie Salavantis is planning a training session with local law enforcement on testing for driving under the influence of marijuana.