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Of Weed and Wheels

The July, 2014 edition of Reason magazine contains a lengthy piece detailing many of the struggles Washington State faces as it transitions to legal status for the purely recreational use of marijuana. One particular problem area concerns setting the presumptive THC levels in a driver’s blood that will constitute prima facie evidence of impairment. Many pot advocates are pointing out—correctly—that regular users, including most “medical” users, will generally be above the presumptive level (currently five nanograms per milliliter) most, if not all, of the time, and that most regular users of marijuana are unlikely to be substantially impaired at this level. Yet as things currently stand, thousands of individuals in Washington are at least theoretically never legally capable of driving.

I note with interests that potheads are coming up against the same issue we drinkers have dealt with for years: Pot affects different users differently, therefore “impairment” can’t be determined via the expedient of simply looking at ratios of certain substances in a user’s blood. I live in Washington’s neighbor to the south where, as in most jurisdictions, a blood alcohol content of .08 or greater creates a rebuttable presumption (which, in practice, is virtually impossible to actually rebut) of impairment. The trouble with this is that while the town librarian who ties one on once or twice a year might be flat on her ass giggling hysterically at .08, those of us who hold our liquor well are only slightly affected at that level, and by no means dangerously impaired. 

One hopes, though perhaps in vain, that the issue Washington is now grappling with might ultimately shine a spotlight on the inherent problems with hard, prima facie numbers like .08 or five nanograms per milliliter in a legal system predicated on presumption of innocence and requiring that the state meet a strong burden of proof in order to obtain convictions against citizens. One further hopes, though almost certainly in vain, that the problems inherent in such shortcuts might prompt a trend away from them, particularly as it becomes more common for police to overreach and seek out convictions even for drivers who are below the presumptive limits. In short, the object of the game in a system grounded in individual liberties emphatically should not be to allow those acting on behalf of the state to short-circuit the laborious process of doing thorough investigative police work and building a case. It should never be about making things easier for cops and prosecutors. Those empowered to take citizens’ property, freedom and even their lives should always have the heavy lift, and should be expected to rise to the challenge of putting up or shutting up if they think they have the goods on a citizen with constitutionally guaranteed rights. This is true regardless of how annoyed we all get at impaired drivers.  Most violations of the law are annoying to the law-abiding, yet this doesn’t mean cops and prosecutors get a pass when it comes to jumping through the often tedious hoops required to make their case. 

Unfortunately the broader trend appears to be in the opposite direction. Oregon passed a bill a few years back banning driving while talking on a hand-held cellular device.  Distracted driving was already illegal, but before the cell phone ban, cops actually had to do the work to prove a driver was distracted to a degree that made his driving unsafe. Now all a cop has to do is show the driver was talking on a cell phone—even if there’s no evidence the driver was actually distracted while doing so and, for that matter, even if the driver was doing nothing else wrong.  Yet another shortcut for cops and cash cow for the state.

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