STEERING SENSE: Professor Andrea Roth drives home a science-based argument.
JIM BLOCK
THE TROUBLE WITH DUI MARIJUANA In every state, DUI alcohol can be proven two ways: by showing the driver had a blood-alcohol concentration of .08 percent or higher (“per se” DUI), or by proving that the driver was “impaired” by alcohol. As part of marijuana legalization, some states have tried to analogize to alcohol, criminalizing driving with a certain THC blood level, such as 5 ng/mL. Under California’s Adult Use of Marijuana Act (AUMA), however, DUI marijuana can only be proven by showing impairment. Berkeley Law Professor Andrea Roth says California should resist the temptation to follow other states and create a “per se” DUI marijuana law. Roth notes in a recent paper that unlike with alcohol, there is no predictable relationship between the level of THC in the blood and the level of intoxication in the brain. Different cannabis strains have different potencies, and the mode of ingestion and user’s history impact THC’s effect, Roth explains in The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness. Unlike alcohol, THC stays in one’s system for hours or days after ingestion, and is not water and fat soluble like alcohol. In short, “just because a person has THC in her blood does not mean that she’s impaired,” Roth says. The .08 blood-alcohol standard is “based on decades of
careful scientific research showing how specific bloodalcohol concentration increases relative crash risk,” she explains. Roth notes that morally blameworthy dangerousness—in this case increased crash risk—has always been what the law looks to in deciding how to criminalize impairment from a legal drug. So far, she notes, relevant studies have not found increased relative crash risk from THC blood levels alone. “By criminalizing DUI marijuana based on THC blood levels absent any relationship to increased relative crash risk, we label and punish as criminals people who have not been demonstrated to be at a morally blameworthy level of chemical impairment,” she says. Roth believes officer training, body cameras, and further scientific crash-risk studies can combat drugged driving without relying on incoherent numerical standards in criminal laws. AUMA allocates a portion of the tax revenue from recreational sales to the California Highway Patrol for training law enforcement officers in techniques to detect impaired driving—and to establish statewide protocols and standards for identifying impaired drivers. —Rachel DeLetto
could be subject to the CSA’s aiding-and-abetting provisions. “There are literally billions of dollars that need a home. It’s an area ripe for innovation,” says Shaening Pokrasso. According to Shaening Pokrasso, who represents a few marijuana tech companies, the startup community is taking notice of this opportunity. Companies such as Kind Financial provide record-keeping services to ease the complex task of closely monitoring marijuana businesses’ cashonly transactions. Another young startup, Tokken, aims to offer an electronic payment system that will not rely on credit card companies or bank debit networks, but instead the Bitcoin blockchain, similar to Venmo. But solutions are still a ways off, and with the uncertainty
of a new administration, cannabis lawyers must make sure their clients understand how to strictly follow California’s laws. Berkeley Law is also taking steps to prepare future attorneys in the field by offering the course Marijuana Law & Policy this fall. Tamar Todd, senior director of DPA’s Office of Legal Affairs, will teach it. Prop. 64 opened an enormous window of opportunity for cannabis-industry jobs and businesses. Nevertheless, Purcell advises enthusiastic clients to be cautious. “Don’t be the gazelle that runs ahead,” he says. “The next few years, just focus on coloring in the lines and being totally compliant with state law. It’s probably going to become safer every day, but right now, we don’t know what this administration will do.” n TRANSCRIP T SPRING 2017 43