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Defining drugged driving: How is THC different than BAC?

Apples and oranges comparisons are always tricky. After all, apples and oranges are both fruits, but they have significant differences too.

So it is with marijuana and alcoholic beverages. Both pot and alcohol, in sufficient quantities, can impair driving ability. But there are significant differences between THC tests for drugged driving and BAC for drunk driving.

What are those differences? And how is Washington doing in recognizing them, so that the enforcement process for "green DUI" is fair?

Marijuana legalization and concern about "green DUI"

When Washington passed Initiative 502 to legalize recreational marijuana in 2012, the state got a new term: "green DUI." It's an informal term to refer to a new legal standard for impaired driving with marijuana in someone's system.

I-502 established a limit of up to 5 nanograms of THC that you can have in your system while operating a vehicle. A nanogram is one-billioneth of a gram. HC is of course the psychoactive compound in the cannabis plant that affects someone's mind and body.

If you have 5 or more nonograms of THC in your system, you can be charged with DUI. But does it really mean you're high, just because you had that much THC in your system?

Experts who understand the impact of THC on the body would likely say no. But Washington's law on THC is a "per se" law. This means that if you test for THC at 5 nanograms or above, you are per se at the amount that is considered to be drugged driving.

In Colorado, by contrast, a driver with a THC of more than 5 nanograms can produce evidence that he or she was not impaired.

Washington's per se law on THC does not necessarily mean, however, that the officers who stopped you for DUI had probable cause to subject you to a chemical test. Law enforcement has to be able to point to tangible signs of impairment before doing that.

Drug recognition techniques

What is probable cause?

Well, as we've noted, even if it turns out THC was 5 nanograms or more, there still must have been a legitimate reason to test your THC in the first place. Under the Constitution, law enforcement officers don't have carte blanch to pull people over and administer chemical tests.

Washington state authorities claim that specially trained drug recognition officers can spot signs of impairment. On the road, these signs could take the form of lane weaving or other erratic driving. At the roadside, they could include behaviors such as an overly familiar attitude toward the officers who made the stop.

If this last point seems a bit dubious, it may be because it is. And this is where the apples and oranges comparisons between THC and alcohol come in.

With alcohol, it's pretty clear that the amount of driving impairment corresponds to blood alcohol content (BAC). This is what makes the 0.08 limit so straightforward.

But THC is absorbed by the body in a very different ways than alcohol. With THC, impairment depends on the person and the way in which the marijuana was consumed.

Making a strong defense

In short, even with a "per se" law on THC, it is possible to make a strong defense against Washington drugged driving charges.

With all the recent law change changes, prosecutors may think they have a green light to seek convictions for green DUI. But an experienced defense attorney can help you protect your rights and driving privileges.

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