Cannabis Today BDN Blog

Marijuana Impairment Tests…

By Becky DeKeuster

The Maine Association of Dispensary Operators (MEADO) serves over 10,000 Mainers with an average age between 40 and 55 years old via the eight medical marijuana dispensaries regulated by DHHS. Together we employ 75 people and provide the highest quality products to our patients, free of pesticides and harmful growing agents. We take pride in serving our communities and work closely with regulators and law enforcement to ensure safe and consistent access to medical cannabis.

Medical cannabis can be administered under strict physician or physician assistant care under a 2009 law passed by Maine voters, enabling patients whose physicians believe they will benefit from the medical use of cannabis to access it from dispensaries. There is a limited list of conditions for which a physician or nurse practitioner may certify the use of medical cannabis. That list includes cancer, glaucoma, HIV/AIDS, hepatitis C, ALS (Lou Gehrig’s Disease), Crohn’s disease, agitation of Alzheimer’s disease, nail-patella syndrome, intractable pain, and PTSD.

MEADO supports the effort to prevent driving while impaired by any substance, including cannabis. However, “per se” OUI limits, such as are now used to determine alcohol impairment, are ineffective in determining cannabis impairment, and should not be introduced. Scientifically sound roadside methods for assessing cannabis impairment do not exist today.

This is definitely one area where we should not “regulate cannabis like alcohol.” Alcohol is the one substance where there is a scientific consensus about a blood-content level which correlates reliably to an unacceptable level of driver impairment. And it is the only substance for which there is a swift, safe, roadside mechanism to test a driver’s Blood Alcohol Content (BAC), usually after they have failed the Standard Field Sobriety Tests.

The comparison ends there because with cannabis, signs of past use—including the presence of metabolites in the blood—do not correlate with actual current impairment in the same way that is true of alcohol. If a blood level test is used as other states have done, a cannabis user will likely test far above that standard, and possibly for as long as several weeks after last use, long after any impairment has dissipated. Because of the way cannabis is stored in the body’s fat cells and released slowly, blood tests will give a “false positive” more often than not.

Even the National Highway Traffic Safety Administration (NHTSA) cautioned against the imposition of per se impairment standards for drugs other than alcohol, and it did so very recently. In a November 2014 white paper entitled “Understanding the Limitations of Drug Test Information, Reporting, and Testing Practices in Fatal Crashes,” NHTSA researchers stated, “Current knowledge about the effects of drugs other than alcohol on driving performance is insufficient to make judgments about connections between drug use, driving performance, and crash risk.”

Fortunately, while we wait for the science to catch up, there are other solutions that the legislature could consider, including the following:

  • Medical cannabis dispensaries and many caregivers already provide education on safe cannabis use, including warnings about operating under the influence. All cannabis retailers should be mandated to provide the same type of education.
  • Tax revenue or some portion of the existing fees collected from medical cannabis providers could be devoted to the production of Public Service Announcements (PSAs). These and any other educational materials should place a strong emphasis on the awareness and prevention of operating impaired.
  • Current Field Sobriety Tests could be analyzed to determine whether they adequately measure real-time cannabis impairment, and altered if any one of the three main FSTs (walk & turn, balance on one leg, horizontal eye tracking) fails to prove cannabis impairment.

No one wants impaired drivers behind the wheel. Mainers must continue to keep our roads safe by all reasonable measures, and law enforcement would benefit from a clear and reliable scientific method to determine hazardous impairment. However, in the absence of that science, we must guard against the creation of a new and arbitrary way of criminalizing those who use cannabis responsibly. Otherwise, thousands of Mainers will suddenly be deemed hazardous to our roadways when they are perfectly fine to operate a vehicle after taking a medical cannabis treatment the day or week before.

Tim Smale

on behalf of the

Maine Association of Dispensary Operators

tim@remedycompassioncenter.org