The Criminalization of Legal Cannabis Consumption

June 23, 2022 08:00 am ET Estimated Read Time: 7 Minutes
The Criminalization of Legal Cannabis Consumption

The legalization of cannabis is opening many doors in states that are embracing it. The industry is bringing positive change from healthier lifestyles, new hopes for medical freedom, and financial opportunities. However, not all changes spurred by the creation of a legal industry are necessarily positive. With legalization comes an increase in DUI charges. The lack of effective tools to measure cannabis impairment accurately, in practice, encourages the criminalization of legal cannabis in states where a legal grey area exists.

Outdated practices and a patchwork of laws create a legal minefield for medical patients to navigate in particular. A great example of this can be found in Pennsylvania with the case of medical cannabis patient Patrick Murphy.

MMJ Patients Criminalized Despite Legality

In November 2017, Patrick Murphy was driving along a state highway in Pennsylvania when flashing lights approached him from behind. A Pennsylvania state trooper had noticed the issue with Murphy’s headlight, which he was en route to receiving an estimate to fix.

Murphy had been visiting relatives in Massachusetts just under a week prior. While in MA, he utilized cannabis which was legal under state law, in order to find relief from chronic pain and PTSD. Upon being pulled over by the Pennsylvania law enforcement officer, the officer stated that he smelled the aroma of cannabis coming from the car.

Despite the medical cannabis program being implemented in 2018 in Pennsylvania, they remain one of the only states that enforce a zero-tolerance law that also applies to THC metabolites. In practice, this means that any motorist that is found to have THC in their blood in any amount or its metabolites is breaking the law. This was the situation in which Patrick found himself. Despite his legal consumption and the passing of several days between his consumption and being pulled over—meaning there was no risk of him still being intoxicated—he was still technically breaking the law in Pennsylvania.

Current Testing for Cannabis Impairment Is Not Precise

Patrick consented to testing as he was not intoxicated. However, the results of the test showed that he still had THC metabolites in his system at the lowest possible measurable amount. Murphy was arrested on DUI charges and spent three days in jail. He endured a long legal battle that involved several appeals, and had his diver’s license suspended for a year. His case sheds light on a larger problem that several states have tried to tackle upon legalizing cannabis with little success. That is the issue of impaired driving by cannabis consumers and patients and the inability to properly test for impairment.

Alcohol breathalyzers rely on readings that are correlated directly with one’s ability to drive. These types of breathalyzers measure the concentration of alcohol within your blood, and readings are expressed as a percentage that correlates to the concentration of ethanol in grams per every 100 ml of blood. In most states, this BAC reading, when equaling or higher than .08, equates to intoxication.

However, a BAC of this level has been proven to impair one’s ability to drive in numerous studies showing consistency across the board. With cannabis, however, there is no such defined parameter that always equates to intoxication across the board. Herein lies the issue with testing drivers for cannabis intoxication.

Unlike alcohol, chemical components and their metabolites from cannabis can be detected in the body long after it is consumed and all impairment has subsided. To make it even more difficult to accurately test for cannabis impairment, one can actually show impairment from THC despite not having any detectable levels of the metabolite in their bloodstream, meaning that the active components are merely existing in the brain at that point.

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Just like cannabis affects everyone differently, everyone’s body metabolizes cannabis differently as well. This can have an effect on impairment levels as well as the concentration of THC metabolites within the blood. To make it more complicated, the method of consumption such as inhalation or ingestion, can also change factors related to metabolites’ concentration within the body, impairment levels, and how long they are detectable.

Considering all of this, it is easy to see why the many attempts at making a cannabis breathalyzer impairment test have failed. This leaves legal cannabis patients and consumers in a predicament.

No Solidity in Behavioral Testing Accuracy with Cannabis Either

According to Tori Spindle, an experimental psychologist at the John Hopkins University School of medicine, it is difficult to get the approval needed to research cannabis impairment testing and solutions. In an interview with Hastings Tribune, the specialist noted that he has to receive special approval from three different institutions in order to research the effects of cannabis, including approval from the FDA, the DEA, and the university itself.

As neuropsychologist and professor Robert Pandina stated to media sources that it’s undeniable that cannabis can impair the ability to drive. However, the level and longevity of impairment drastically depend on the individual themselves. This leaves it up to law enforcement officers to utilize behavioral tests to judge cannabis impairment. However, when it comes to cannabis behavioral testing is still largely unreliable, and Patrick Murphy is a prime example of this inaccuracy.

Despite not being under the influence of cannabis, Murphy found it difficult to perform the simple behavioral tasks put forth by the officer, such as walking in a straight line. This is because Murphy struggles with chronic back and knee pain and has difficulty keeping his balance, conditions which he used medical cannabis to find symptom relief. So, Murphy’s inability to complete behavioral impairment tests had nothing to do with impairment, but rather physical health conditions.

MMJ Patients Fight Back and Attempt to Forge a Better Future

It is sad to see with all of the progression that we are making regarding cannabis reform that we are still wasting resources to arrest individuals such as Murphy. A legal consumer who never broke a single law other than the Pennsylvania zero-tolerance law. A law that considering what we know about testing perimeters and their ability to equal impairment from cannabis, shouldn’t have applied in the opinion of many. Unfortunately, the courts did not share the same opinion.

In his appeal against the charges, Patrick Murphy and his legal team presented the following question to the courts for consideration.

“Given the changes in the law concerning the legalization of marijuana in other states   and   the   legalization   of   medical   marijuana   in   Pennsylvania,   is statute 3802(d) unconstitutional for being overbroad as it applies to marijuana in that it punishes legal as well as illegal activity?

The court ultimately denied the appeal stating that the arguments were unavailing. Their counterargument was that the law does not criminalize having cannabis metabolites in one’s blood but rather the act of driving a vehicle with said metabolites in one’s system in the state of Pennsylvania. You can read the entirety of the case appeal here.

We can all agree that it is important to address the safety concerns of driving while under the influence of cannabis. However, we must quit assuming that cannabis consumption automatically equals intoxication or impairment. Yes, cannabis can alter the way we feel, how we react, and ultimately how we drive. However, the current laws that exist create confusion and undeniably have cracks where law-abiding citizens slip through.

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