March 22, 2019
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Maine weighs how to address drivers impaired by marijuana


LEWISTON, Maine — As advocates for legal marijuana close in on a signature-gathering campaign likely to force a statewide ballot question in 2016, Maine lawmakers, law enforcement officers and elected officials are more seriously contemplating the broader implications of what legal weed would look in the Pine Tree State.

Topping their concerns is a possible increase in the number of drivers who will be impaired by the mind-altering drug when they get behind the wheel.

A growing body of research on the impact of marijuana use and motor vehicle accidents, including fatal crashes, suggests marijuana-related fatalities are on the rise. Nationally, they have increased from about 6 percent of all fatalities to nearly 12 percent. And while officials warn that some of that uptick is better testing, it’s also an indicator that marijuana use is having an impact on highway safety.

But unlike alcohol — on which a driver who has a blood-alcohol content of more than 0.08 percent is deemed legally impaired under state law — there is no physical standard to judge marijuana impairment.

Police also have no easy way to test drivers at the roadside for marijuana impairment. The technology that allows police to reliably sample a driver’s blood-alcohol content with a breath test doesn’t exist for marijuana. A more invasive and time-consuming blood test or urine test, which can often take weeks to return from a lab, is necessary.

In the end, those who choose to toke up on pot or chow down on marijuana-laced food products face the same penalties as the person who drives after they have had too much to drink.

Maine’s implied-consent law requires a driver to provide a breath, blood or urine sample when a law officer suspects they are under the influence. It applies to all mind-altering drugs, including prescription medications, and drivers can face the same penalties. And those who fail to give consent face an automatic suspension of their driving privileges under the law.

Still, determining impairment, and what a driver may be under the influence of when it is not alcohol, is difficult. That’s why Maine, like other states, has special training and certification requirements for a small cadre of law enforcement officers who become drug recognition experts.

Maine has about 70 drug recognition experts statewide, and will be training an additional 25 starting in February, according to Rick Desjardins, assistant director of the state’s Criminal Justice Academy, which trains all police officers in Maine.

Desjardins said drug recognition experts are concentrated in areas of the state with more population. He said the time commitment, including an intensive two-week training course, field certifications with a drug recognition expert instructor and ongoing proficiency reviews can make it difficult for smaller police departments to have drug recognition experts on staff.

That’s a problem the academy must address, he said.

But police departments readily share drug recognition experts when possible, Desjardins said. Lewiston, for example, has one drug recognition expert on staff and another will be among the 25 being trained in February, Lewiston police Chief Michael Bussiere said.

In Auburn, Detective Terrence McCormick is the department’s lead drug recognition experts McCormick also is an instructor for the drug recognition expert program in Maine and recently said the process of becoming certified under the program, which includes both national and international oversight, is rigorous and ongoing.

Of the many specialties a law officer can be trained to do, in his estimation, becoming a drug recognition expert is the most difficult, McCormick said.

“It is a very hard program to get through,” McCormick said. Only about 2 percent of law enforcement officers nationwide become drug recognition experts.

McCormick said drug recognition experts have to be certain of their assessments of any driver suspected of operating under the influence of something other than alcohol. And looking to charge somebody with a crime isn’t the first thing on their minds, McCormick said.

Drug recognition experts are trained to not presume anything and to first look to determine if a person displaying signs of impairment may be suffering from a medical emergency, such as an epileptic or diabetic seizure, McCormick said.

Drug recognition experts interview the officer on the scene and obtain any additional information about whether the officer discovered evidence, such as drugs, in the car or other signs the person could be under the influence.

“We don’t just go in thinking we know what’s going on,” McCormick said. “We have to get the whole story, how the officer made contact with the subject. We go over everything and I look immediately for a medical issue.”

McCormick said if a drug recognition expert determines the suspect needs medical attention, the interview stops and the suspect is taken to medical care.

If they determine the individual is not facing a medical situation, they move on to a more detailed evaluation that doesn’t take place roadside but at an inside location, usually a police station. It involves an extensive interview, psychological and physical examinations, and can take up to an hour to complete, McCormick said.

Drug recognition experts also have to show their proficiency by identifying the category of drug they believe a person is impaired on and that assessment is checked against actual lab results from a suspect’s blood or urine sample.

If officers are inaccurate in their assessments or don’t regularly do impairment assessments in the course of their work, they can be removed from the program and lose their certifications.

McCormick said the investment of time for the officer and his department is a big consideration. It also explains the difficulty police departments have in keeping the number of drug recognition experts up.

McCormick and other drug recognition experts are frequently on call and, while their overtime and training costs are usually paid for through U.S. Department of Highway Safety grants, the time commitment for the individual officer can be staggering.

“It’s really not for everybody and I think that’s why we also see a fair amount of turnover,” McCormick said. He said drug recognition experts are called in at odd hours, usually late at night or early in the morning, and can be asked to travel long distances, sometimes more than an hour’s drive, to assist an officer who believes they have an impaired driver on their hands who has tested negative for alcohol.

If Maine voters decide to legalize marijuana for recreational use, McCormick and other police said they suspect the workload for drug recognition experts will increase. He also said if legalization should come to Maine, it should come with a big push to educate the public to the dangers of using the drug, especially while driving.

“I don’t know that [marijuana legalization] will happen here,” McCormick said.

“I don’t think people really understand how much and how long marijuana can impair a person,” he said. Even hours after the feeling of being “high” wears off, a driver’s reaction time, depth perception and ability to concentrate are still being affected by marijuana use.

Other states, including Colorado, where voters have legalized marijuana for recreational use are now grappling with the results.

Police and traffic safety officials in the Rocky Mountain State have been collecting data on marijuana-impaired drivers for nearly two years. And while most agree the data remains inconclusive, trends are beginning to emerge.

One of the biggest doesn’t surprise law enforcement officials in Maine or Colorado: A large percentage of impaired drivers who are charged with operating under the influence have more than one mind-altering drug in their systems — most frequently marijuana and alcohol.

That combination can be particularly dangerous. Some studies suggest THC, the psychoactive chemical in marijuana, is more readily absorbed into a person’s system when they also have alcohol in their blood.

A recent working group set up by the Maine Legislature has recommended the state move to an impairment standard that would lower legal blood-alcohol content in Maine from 0.08 percent to 0.05 percent if a driver also is under the influence of marijuana at a level of 2 nanograms of THC per deciliter of blood.

The same working group has recommended the Legislature adopt a blood standard for marijuana that would make it illegal for a person to drive if they have 5 nanograms of THC per deciliter of blood with no other drugs in their systems.

But a nanogram standard for THC in the blood is controversial. Advocates for legal marijuana and criminal defense attorneys are quick to point out that measuring THC in the blood may not indicate a person is actually impaired. The science of the measurement has been inconclusive, but policymakers in other states have agreed some standard is necessary.

Police in Colorado, which has a 5-nanogram standard for impairment, said it hasn’t necessarily increased the number of summonses being issued for marijuana-impaired drivers.

Since 2014, when marijuana first became legal in Colorado, the number of marijuana-only citations issued by the Colorado State Patrol, which provides law enforcement for the state’s major highways, decreased by about 7 percent.

The marijuana-only citations as a percentage of the total driving-under-the-influence citations, however, were up slightly from 12 percent to 14 percent.

But Sgt. Rob Madden, the public information officer for the Colorado State Patrol, cautioned against drawing any definitive conclusions from only two years of data.

“A year and a half, or a year and three-quarters of data, is definitely not enough to start looking at trends or anything like that,” Madden said.

He said month-to-month enforcement efforts can be affected by a variety of things, including a police academy graduation that may have seen dozens of officers off the road for the day or a two-week conference for drug recognition experts.

On the other side, he said, high-intensity enforcement weekends, when additional officers are in the field conducting OUI enforcement details, can also skew the numbers.

Madden said many states are now looking toward Colorado and Washington, both states that have legalized marijuana, for information and ideas on how to regulate and enforce impairment laws.

Both Madden and police officers in Maine said that while legal marijuana may be new, police have a long-standing history of dealing with the drug and a good understanding of the impact it can have on highway safety.

Madden said the best advice Colorado can give is for states to start collecting data so they can make policy decisions based on facts.

“Marijuana is not new in the United States,” Madden said. “It’s not anything any law enforcement agency is coming into not understanding what marijuana is and driving under the influence of marijuana is. So start collecting data now, so if it does become legal you can better track it and understand how it will affect your state.”

A public awareness campaign to educate drivers and others to the dangers of impaired driving and the penalties associated with it is also paramount, law enforcement officials agree.

Back in Maine, police said they worry legalization of marijuana could send the message that using the drug and getting behind the wheel is safe, when it isn’t.

“I think people are sometimes lulled into a sense of security that marijuana does not impact the ability to safely drive, and that is just crazy,” Desjardins said. “It is enormously impactful when it comes to a person’s ability to drive safely.”


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