Driving Under the Influence of
Marijuana Laws and the Publics Health
Public Health and
the Law
David Turnbull and
James G. Hodge, Jr.
About This Column
James G. Hodge, Jr., J.D., LL.M.,
serves as the section editor for Public
Health and the Law. He is the Professor
of Public Health Law and Ethics at the
Sandra Day OConnor College of
Law and Director of the Public Health
Law and Policy Center for at Arizona
State University.
280 journal of law, medicine & ethics
Since California first legalized medi- enterprises, curbing violence, and
cal marijuana in 1996, 1 multiple, preventing drugged driving and the
additional states have decriminalized exacerbation of other adverse public
marijuana possession2 and permitted health consequences10 This latter
adult-use and retail sales. To date, 9 priority was echoed in March 2017
states legalize adult-use and retail by a representative of the California
sale of marijuana, 28 states allow Department of Public Health after
medical uses, and 17 states permit the the states legalization of retail sales
use of cannabidiol (CBD)/low tetra- in 2016.11
hydrocannabinol (THC) products. To survive federal scrutiny, state
Only 7 states have no marijuana- lawmakers must proffer standards
access laws.3 to prevent driving under the influ-
States marijuana laws reflect ence of marijuana (DUIM). As with
growing public acceptance. In 1969, similar DUI laws concerning alcohol,
only 12% of Americans supported the DUIM laws should limit vehicular
legalization of recreational marijuana use among operators whose impaired
use; by October 2016, 60% supported psychomotor skills inhibit safe driv-
it.4 Over two-thirds of doctors sur- ing. Making these determinations is
veyed in 2014 said marijuana should not easy for law enforcement officials
be a medical option for patients.5 In due to varied reliability of chemi-
2017, nearly two decades after its first cal tests and observable standards
comprehensive report on the health of intoxication involving marijuana.
effects of marijuana, the National This commentary explores the chal-
Academy of Medicine (NAM) con- lenges of crafting DUIM laws that
cluded there is substantial evidence appropriately balance individual
that marijuana effectively treats rights and public health and safety.
chronic pain and nausea.6
Yet proliferation of legally- DUI Laws and Due Process
approved uses of marijuana among Promoting public health and safety
states is tenuous given its continued became a primary objective in
federal classification as a controlled reforming DUI laws in the 1980s,12
substance with no accepted medi- leading to liberally-construed crimi-
cal uses. Since October 2009, the nal offenses.13 Some DUI laws broadly
U.S. Office of the Attorney General prohibit driving under the influ-
has selectively enforced marijuana ence of alcohol; others specifically
offenses.7 Newly-appointed Attorney require mental or physical impair-
General Jeff Sessions may rescind ment or intoxication.14 Traditionally,
this policy,8 but most existing state observable symptoms of intoxication
marijuana laws may not be chal- or coordination testing via a field
lenged provided they do not conflict sobriety test counted as evidence of
with federal enforcement priorities.9 impairment,15 but these assessments
These priorities include prohibit- proved to be overly subjective and
ing distribution to minors, inhibit- unreliable across populations and
ing sales revenues among criminal observers.16
David Turnbull, J.D., is a law clerk with the Arizona Court of Appeals (Division 1).
He earned his J.D. in 2016 from the Sandra Day OConnor College of Law, Arizona
State University (ASU), where he served as an Executive Board Member for Jurimet-
rics: The Journal of Law, Science, and Technology, and his B.A. from Dartmouth in
2012. James G. Hodge, Jr., J.D., LL.M., is Professor of Public Health Law and Eth-
ics; Director, Center for Public Health Law and Policy; and Director, Western Region
Office, Network for Public Health Law, Sandra Day OConnor College of Law, ASU.
The Journal of Law, Medicine & Ethics, 45 (2017): 280-283. 2017 The Author(s)
DOI: 10.1177/1073110517720656

The invention in 1953 of the
Breathalyzer, which can register the
proportion of alcohol vapors in one
exhaled breath,17 generated the per
se blood alcohol content (BAC) stan-
dard, which all states have adopted.18
It prohibits operation of motor vehi-
cles by persons with an alcohol level
above an established percentage in
their breath.19 Scientific studies have
determined that a BAC of .08% sig-
nificantly correlates with material
impairment of psychomotor skills for
most drivers.20
Criminalizing vehicular operations
by anyone with a certain BAC, irre-
spective of actual impairment,21 was
initially problematic.22 Arbitrary evi-
dentiary presumptions or inferences
extending from per se BAC thresholds
may violate due process,23 especially
if a certain threshold is not rationally
tied to impaired driving.24 Moreover,
the U.S. Supreme Court prohibits use
of evidentiary presumptions in a jury
charge that have the effect of reliev-
ing the State of its burden of persua-
sion beyond a reasonable doubt.25
Rebuttable presumptions may shift
the burden of production, but not the
burden of persuasion, to the defen-
dant,26 thereby requiring a rebuttal of
the prosecutions evidence.27 The per-
missive inference, a lesser evidentiary
standard, allows juries to infer crimi-
nal elements.28 Despite these contro-
versies, most courts have upheld BAC
standards as valid and supportive of
the rational-connection test,29 as well
as rebuttable presumptions in some
cases.30
Mapping DUIM Laws
To protect the publics health in an
era of legal expansion of marijuana
access, states must seek to diminish
drugged driving incidents consistent
with due process. Unlike with alco-
hol, there is no easy-to-apply test
for marijuana use or impairment.
A blood test conducted pursuant to
probable cause is the best objective
proxy for detecting marijuana,31 but
its use raises new issues.32 Along with
traditional under the influence or
incapacity standards applied to
alcohol and other drug offenses, two
dominant statutory approaches to
address DUIM have emerged:33
covert medication spring 2017 281
The Journal of Law, Medicine & Ethics, 45 (2017): 280-283. 2017 The Author(s)
1. per se blood cannabis content
(BCC) laws Colorado, Mon-
tana, Washington, and Illinois
have per se BCC statutes that
prohibit driving if the operators
blood test exhibits a BCC of 5
nanograms of THC per milliliter
of blood (5 ng/ml).34 Nevada and
Ohio established a BCC thresh-
old of 2 ng/ml,35 and Pennsyl-
vania set a 1 ng/ml threshold.
Colorado is the only per se BCC
standard that creates a permis-
sive inference of impairment,36
thus affording BCC evidence less
weight; and
2. zero tolerance laws Twelve
states proscribe THC found in an
operators system; nine of these
states also prohibit any other
marijuana metabolites. 37 Of
these dozen total states, five allow
medicinal uses of marijuana, but
only three exempt medical mari-
juana users from their zero toler-
ance laws.38
Pharmacology and Psychoactivity
of Marijuana
Besides alcohol, marijuana is the
most common substance found in the
blood of drivers involved in vehicular
crashes.39 Marijuana users are esti-
mated to be 25% more likely to be
involved in a crash.40 NAM recently
concluded [t]here is substantial
evidence of a statistical association
between cannabis use and increased
risk of motor vehicle crashes,
although more work is needed to
accurately assess specific dosages tied
to impairment.41
Unlike with alcohol, the process-
ing and varying effects of marijuana
on driving impairment are not well
understood. 42 Ethanol in alcohol
creates psychomotor effects that run
simultaneously with its metaboliza-
tion. Thus, alcohol has a predictable
dose-related psychoactive influence,
which dissipates uniformly from the
human body, allowing for accurate
retrograde analysis,43meaning BAC
correlates well with impairments of
alcohol intoxication. Marijuana lacks
similar predictability.44 Multiple epi-
demiological studies have reached
mixed conclusions on impairment,
Turnbull and Hodge
especially when marijuana is dually
consumed with alcohol.45
Although THC is its primary psy-
choactive component, marijuana
has two other metabolites: Hydroxy
(11-OH-THC) and Carboxy (THC-
COOH).46 Hydroxy has similar psy-
choactive capability as THC, but
Carboxy is totally inactive. There-
fore, only the presence of THC or
Hydroxy in ones blood may correlate
with impairment. Detecting any of
these three components in humans
is tricky. As they are all fat soluble,47
they are not processed as predictably
as water-soluble substances, such as
ethanol.48 THC and Hydroxy levels
in the blood generally peak within 30
minutes after ingestion, but typically
decrease rapidly to less than 5 ng/ml
over 3-4 hours.49 Carboxy, however,
can linger in blood for days after a
single use or light use.50 Higher rates
of usage (as with medicinal users)
correlate with a higher blood-reten-
tion rate of Carboxy.51
Additional problems relate to
how marijuana acts on the body and
mind. Marijuana is known to hamper
driving ability, particularly regard-
ing reaction time, depth perception,
and coordination.52 However, experi-
mental studies with actual marijuana
impaired driving tests demonstrate
inconsistent or negligible effects.53 A
wide and inconclusive range of BCC
levels (between 2-10 ng/ml) corre-
late with identifiable driver impair-
ment.54 In addition, marijuana users
may have an increased awareness of
their impairment leading to more
defensive driving techniques. In
contrast, alcohol tends to suppress
inhibitions that result in aggressive,
risky driving. Marijuanas cautionary
effect is greatly diminished, however,
when alcohol and marijuana are used
concurrently.55
A Balanced Standard for DUIM
Laws
Marijuana is unquestionably an
intoxicant with real psychomotor
effects and potential dangers for
motorists and pedestrians. Promo-
tion of DUIM laws in the interests of
protecting public health and safety is
warranted, particularly when guilty
operators are offered remediable
JL ME COLUMN

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