DUI tests among chal­lenges le­gal­iza­tion could present


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.

“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.

Zero-tol­er­ance in state

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 from charg­ing 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.

Danc­ing around de­crim­i­nal­iza­tion

When it comes to de­crim­i­nal­iza­tion of mar­i­juana, Scran­ton and WilkesBarre 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.

Coun­cil­woman Beth Gil­bert pro­posed de­crim­i­nal­iza­tion in 2016, partly be­cause of the chang­ing at­ti­tudes about mar­i­juana.

“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 WilkesBarre 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.”

‘Do it right the first time’

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. Coun­cil­man 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.”

The topic in Scran­ton fell by the way­side and coun­cil has not dis­cussed de­crim­i­nal­iza­tion mea­sures.

In an in­ter­view Fri­day, Perry said he re­mains in fa­vor of med­i­cal mar­i­juana. He’s also in fa­vor of dis­cussing with city and county law en­force­ment of­fi­cials whether Scran­ton should fol­low other cities in Penn­syl­va­nia that have de­crim­i­nal­ized mar­i­juana.

“I think we should open it up to talks on that with the chief of po­lice and the dis­trict at­tor­ney, to see if that (de­crim­i­nal­iza­tion) is some­thing (Scran­ton) should do as well,” Perry said.

Graziano said 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.

“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.

Con­tact the writer: [email protected]­i­zensvoice.com; 570-821-2051; @CVBILLI on Twit­ter


Mar­i­juana in wax form is smoked in Scran­ton on Jan. 31.

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