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Marijuana DUIs Are On the Rise: Time to Shift Your DUI Practice?

By Mark Wilson, Esq. on February 10, 2015 9:07 AM

Old and busted: drunken driving. New hotness? Drugged driving. The latest survey conducted by the National Highway Traffic Safety Administration (NHTSA) found that incidents of driving under the influence of alcohol are down by a third since 2007.

That's good news for road safety, but there's some bad news too: 25 percent of drivers tested positive for marijuana or another drug that could impair their ability to operate a vehicle. Indeed, among weekend nighttime drivers, the number who had pot in their systems jumped by 50 percent between 2007 and 2014, NHTSA found.

Maybe it's time to modify your DUI practice?

More Marijuana = More DUIs? Maybe?

NHTSA attributes the drop in alcohol-related DUIs to national attention placed on the issue. But now that marijuana is legal in four states (and some kind of murky in-between legal in Washington, D.C.), it seems that marijuana-related DUIs are going to be on the rise.

A separate NHTSA study found that marijuana use is associated with a higher risk of crashes, though NHTSA cautioned that could be because the group of people most likely to use marijuana -- young men -- is already at the highest risk of crashes. (The Christian Science Monitor reported on a Yale University Medical School expert who testified at a 2012 trial that links between marijuana and crashes are "highly inconclusive.")

Even so, the survey suggests that DUI defense practitioners are going to have to alter their games in states where recreational marijuana is legal. None of those states permits driving a vehicle while under the effects of marijuana, so defendants will need some kind of DUI defense -- except that the old standbys might not work.

The biggest defense is probably still the classic one when it comes to marijuana: THC lingers in the body for up to 30 days, so a chemical test of blood or hair that reveals THC metabolites means only that a person has used marijuana sometime in the past 30 days. This means the potential for dueling expert testimony, as each side tries to convince the jury that its version of scientific evidence is correct.

Where's the Innovation?

It's always seemed like marijuana legalization would create a cottage industry in better ways to test for marijuana -- especially since a new device like that would not only be patentable, but would be the hot Christmas gift for every police department in the country (combine a monopoly with inelastic demand, and you have a recipe for Scrooge McDuck's money bin).

For now, most law-enforcement agencies are relying on THC blood tests, along with legal limits of "5 nanograms per milliliter of blood" (a limit that's being called into question). This is just a function of the newness of the practice, though; in a few years, enough states will have comprehensive marijuana laws that we'll likely have more "legal limits" and probably better tests. So, yes, your practice area is changing.

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