If you think Baruth’s series on speeding demonstrated both a lack of adult responsibility and abundant sociopathology, you’re going to love this.
Every state in the union has DUID, driving under the influence of drugs, statutes in their traffic codes. In Michigan, though, you may not even have to actually be “under the influence” to be convicted. A few years ago, as part of a package of drunk driving legislation passed to maintain the flow of Federal highway funds, Michigan’s vehicle code (257.625.8) now states:
8) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has in his or her body any amount of a controlled substance listed in schedule 1…(emphasis added)
Schedule 1 substances are the usual suspects: heroin, cocaine, marijuana, other opiates, indole amines (psychedelics) amphetamines, barbiturates etc. Note the “any amount” part. If Johnny Law can prove that in your body you had even the smallest trace amount of illegal drugs when you were driving, you’re in deep trouble. Impairment is not the legal standard when it comes to driving and drugs, simple presence of the controlled substance is. Let’s say you aren’t a doper but went to a rock concert and the people around you were smoking pot. Due to second hand smoke you probably ended up inhaling at least a few THC molecules. If you could smell it, it got in your body even if it wasn’t enough to get you high or even have you notice any effect at all. It is, however, any amount, and state of the art blood testing equipment can measure substances in your blood at virtually any amount. Modern testing can measure concentrations as dilute as a single picogram per milliliter (pg/ml). A milliliter of water weighs one gram. A picogram is one trillionth of a gram. That concentration is the equivalent of one drop of oil in a 10 mile long train of tank cars filled with water. While that level of dilution is almost homeopathic, it’s still measurable. If it’s measurable, you broke the law, impaired or not.
It gets worse. The above statute references Michigan PA 368 of 1978 that in addition to the cited substances, their “derivatives” are also criminalized. It’s likely that the legislature intended that to apply to psychoactive derivatives, so-called designer drugs that were being developed in the late 1970s as a means of getting around the laws as they were then written. Unfortunately, the way that Michigan police agencies interpret the law, derivatives also include completely inert and non-psychoactive metabolites that your body creates as it processes the drugs. You can be convicted of drugged driving even if you aren’t really drugged.
Marijuana users face particular scrutiny under this enforcement regime.
Unlike many drugs like opiates and psychedelics, that are quickly digested and whose metabolites are quickly flushed out of the body, THC and its metabolites are fat soluble and are stored in fatty tissue. That’s one reason why former pot smokers will sometimes get a buzz, on top of the endorphin rush, when they do vigorous exercise. Burning off the fat releases some THC stored in that fat into your blood. Marijuana is a relatively benign drug but it has a very long half-life. You can shoot heroin on Saturday night and by Tuesday you’ll test negative. You can smoke a joint at a Memorial Day picnic, and still test positive on Labor Day. Even without the very latest pico level testing equipment you can still test positive for the presence of THC or its metabolites for many months, sometimes years, after ingesting the drug stops. With the latest equipment, a heavy smoker would probably test positive for life, decades after stopping. That’s why when companies drug test employees, for marijuana use there is a relative scale based on the level of THC found. A pass/fail, presence/no presence standard would fail too many people that don’t currently use marijuana, the practical equivalent to a false positive. While businesses may use a reasonable standard so they can keep good employees, a reasonable standard can get in the way of putting someone in jail or generating some revenue with fines.
Any amount is any amount and in 2006 the Michigan state Supreme Court ruled that “any amount” of “derivatives” means exactly that. For a while you could be convicted of OWPD (operating with the presence of drugs) even if you never smoked a joint or snorted a line and were as-sober-as-a-judge-whose-father-was-a-Methodist-minister when you got behind the wheel. In July of 2010, because of Michigan’s medical marijuana act, the court reconsidered the question and overturned its previous ruling, saying that the legislature’s definition of metabolites was vague and the law, as enforced, made it virtually impossible for patients using medical marijuana to ever legally drive.
Writing for the court’s majority, Justice Michael F. Cavanagh said, “Individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired.”
Predictably, police officers in the state, never eager to give up any power, any tool to generate revenue and put people in jail, were not thrilled with the ruling. Sgt. Christopher Hawkins, legislative liaison for the Michigan State Police said, “We’re in a frustrating situation. It’s almost like the courts are saying that we can arrest if we find marijuana on you, but it’s different if we find marijuana in you.”
Since the court effectively threw out the use of drug metabolites as evidence, those who are still convinced that potheads on the road are a serious menace (and a potential revenue source) are pursuing legislative remedies. Former Eaton County sheriff and current member of the Michigan House of Representatives, Rick Jones has introduced legislation to permit and encourage the use of roadside drug testing to test for six commonly used illegal substances.
Jones was a staunch opponent of the Michigan Medical Marijuana Act and it appears that his opposition to all marijuana use is part of Jones’ motivation. Jones also says that the bill would save money by reducing the amount of work needed to be done by the heavily backlogged state police crime lab.
The use of roadside testing would increase the likelihood of finding the actual substances before they are metabolized since the initial test would be administered immediately after the person was pulled over, not later in the police station or hospital after waiting for search warrants. The roadside test kit would take saliva samples that are tested with a portable analyzer at the scene. Assuming the driver fails the test, the proposed law stipulates that a second screening test will be done at a lab. If that gives a positive result, a confirmation test will be done using a more precise immunoassay method.
“I know this has been a problem for law enforcement for years,” Jones said. “What do you do when you’ve got a guy you know is on drugs but you can’t test him?” Perhaps that’s the difference between real science and police science. In real science, you perform the tests and then make your conclusions. In police science, you make up your mind first about who is guilty and then use a “scientific” test that will back you up. If the scientific test can measure trillionths of a gram, you can lock just about everybody up.
In case you don’t know, by the way, really good marijuana costs about $600 an ounce retail. That’s about $21 per gram. A trillionth of a gram of very expensive pot would be worth just 2.14e-11th dollars. It’s been a while since Mr. Parnes’ AP algebra-trig class but I’m pretty sure that’s not very much money.
A lot of heartache for an infinitesimally small amount of virtually nothing that isn’t harming anybody anyway.
If the legislation passes Michigan would be the first state in the US to implement roadside drug testing, which is apparently already done in Australia and Europe, though I’m not sure what technology they use.
There is currently only one roadside drug tester currently on the market, made by Phillips and designed specifically for law enforcement use. As a technology freak I have to say that it’s a cool technique. Magnetic nanoparticles are coated with ligands designed to bind to the tested-for chemicals. Magnetic and optical readings can then be taken from the magnetic particles to extrapolate the chemical levels. It seems to be far more reliable and accurate than Breathalyzer machines. What’s troubling about the technology is that Phillips initially developed it for its promise as a medical diagnostic tool not a cop toy. When Phillips introduced the technology they described it as
A new biosensor platform developed by Philips that uses magnetic nanoparticles to measure target molecules could bring complex in-vitro diagnostic tests out of the laboratory and into decentralized settings, including the patient’s bedside and at home. The speed, ease of use, robustness and accuracy of this new technology could address the requirements of critical care environments by potentially speeding up the diagnosis of life-threatening diseases. In addition, it could be suitable for monitoring chronically ill patients at home.
See any words like police, law enforcement, illegal drugs? Me neither. It talks about bedside diagnostic tests, not roadside drug tests. Though touted as a medical tool, the first commercial device based on the technology is going to be used to put people in jail easier, not get them out of the hospital faster.
I’m not sure exactly what that says. Phillips is obviously making a business decision. Though medical devices can be a very profitable business, it appears that law enforcement and revenue enhancing devices may be even more profitable. DUI and DUID fines are just about the highest traffic fines levied. Every business has its “whales”, customers with whom it is very profitable to do business. DUIs and DUIDs are the whales of the traffic ticket biz. Cops and prosecutors (and all the other public employees that are leeches on the system) love drunks and druggies because they can usually tag them with a whole creel of tickets, court costs and driver responsibility “fees”. In Michigan, first offense DUI rings you up for $100-$500. Kaching. Lansing tacks on two years of driver responsibility fees at $1000/yr. Kaching, kaching. The fines rise with each subsequent offense. Kaching, kaching, kaching.
There’s a moral implication here. It would be one thing if a technology was diverted from medicine to preventing bioterror attacks. I’d say that, yes, that was a morally defensible trade off, just as making penicillin available to Allied troops in WWII before it was available to the general public was a morally defensible trade off. However, though they like to call it a war on drugs, it’s not a real war. The technology was developed to drastically shorten the time needed for blood tests in hospital settings. I don’t think I’m going out on a limb to say that waiting for blood work results has likely killed more people in hospitals than drugged drivers have on the roads.
Besides the moral implications of first using a promising medical technology for law enforcement purposes before developing practical medical applications, the Phillips device will put at legal risk people who don’t use illegal drugs, but do use prescription drugs legally and responsibly. Remember, the legal standard is “any amount” when it comes to drugs, not like with alcohol, where there has to be evidence of impairment or a statutory blood alcohol level. In addition to testing for illegal drugs like cocaine, heroin, cannabis, amphetamine, and methamphetamine the Phillips roadside drug tester also yields a positive result for a variety of legally prescribed drugs, like benzodiazepine anti-anxiety drugs, amphetamines prescribed for ADHD, and of course it cannot distinguish between medical marijuana and plain old pot. By the time an immunoassay test is done to see what’s really what, you’ve already probably spent the night in jail having really broken the law or not.
Let’s be real. This is not about impaired driving, it’s about keeping marijuana criminalized one way or another. Pot is about the only illegal drug you can get away with using and not being seriously impaired in your driving (cocaine, maybe). Heroin junkies and meth freaks are going to show admissible evidence of impairment if they’re high, slurred speech, swerving out of lanes, etc. Potheads don’t make it easy for cops. What Rep. Jones means when he says “when you’ve got a guy you know is on drugs” what that means, translated from copspeak is “the guy looks like he’s high but since he’s only high on pot, he hasn’t really done anything that constitutes admissible evidence of impairment.” Potheads pass roadside sobriety tests with flying colors. I know I have.
The only reason Rep. Jones thinks this is a problem is that because he was a cop, his friends who are regular marijuana smokers weren’t likely to share that fact with him. The only cops who know that their friends get high are the cops that are potheads themselves. A lot of confiscated weed never makes it to the evidence room. If Jones knew how many people regularly and safely drive under the influence of marijuana, he might have a different opinion. Maybe, but not likely, remember he thinks like a cop, and some cops just don’t seem to think the way normal folks do.
Let’s take a survey. How many of you know someone who likes to smoke marijuana? Now how many of them do you think never puff before or during a drive? Based on my personal experience, the people that I know, and the people that I’ve met at dealers’ houses, if someone smokes pot regularly, they also regularly drive stoned. Since there are tens of millions of Americans who light up regularly, that means that the guy in the lane next to you, might be really grooving on the jamband channel on XM. Ain’t no bout a doubt it. I don’t know any regular pot smokers who don’t smoke and drive. I’ve shared a joint at 125 mph in a Lotus Europa and with guys about to go do a ton and a half on their Hayabusas. Baruth’s already told us about roaches he’s found in press cars. Everyone got home safely just fine. A friend once described his routine when driving long distances on the Interstate: light a joint, pop in a cassette. Flip the cassette, light up another joint. When cassette’s done you’re 100 miles down the road and you iterate. Lather, rinse, repeat. Diamonds on my windshield. Roll right through the night.
Since you now know that your friends who smoke dope indeed smoke and drive, do they appear to be any more “impaired” than any other driver? Are they erratic or unsafe drivers? Sure, they might space out and miss an exit now and then, but they aren’t impaired in the sense that a drunk is. They’re buzzed, but not a road hazard.
I’ve been smoking pot off and on (mostly on) since it was coming home from Vietnam in grunts’ duffel bags. My old shrink said that while it might degrade my performance doing high level math problems, there’s no way that I could smoke enough marijuana to impair my cognitive abilities. Since pot is not known to affect reflexes the way alcohol or other drugs do, there’s just about nothing about pot that seriously impairs driving – at least for large numbers of dope smokers who drive high.
Yes, it’s not a good idea for novice pot smokers to drive when high. Once, when he was in law school a friend who wasn’t a serious smoker came over and we shared some weed. Munchies and thirst ensued, so a bunch of us piled into my car and I drove around the corner to the Beverage Depot, an old Victorian house converted to a drive through beer store. When we actually started to drive through the house, he just lost it and started to freak. So if you’re not too experienced with pot, don’t fire up a kush bomber and then go for a spin. Frankly, I prefer the purple sativa strains to the skunky kush indica stuff. Sativa gets you high. Indica gets you stoned. If you have any significant experience with either, though, neither will put you into a bridge embankment.
So yeah, I get high behind the wheel. So what? Believe me, as a narcissist, it’s one of my lesser flaws. I’m demonstrably not impaired behind the wheel. I’ve smoked behind the wheel hundreds of times and gotten behind the wheel stoned even more often than that. It’s not case of God protecting drunks and fools. I’m a safe driver.
While not pristine, I have a fairly clean driving record, and I might have gotten two or three tickets for minor speeding in almost four decades of driving. No other moving violations. Even with warnings, I don’t think I’ve been pulled over more than a half dozen times. The most points I ever had on my driver’s license was 4, usually it’s been zero. Behind the wheel I’ve never caused or been in a serious accident and nobody’s ever accused me of driving in a less than safe manner. And yes, I’ve driven stoned with my kids, now grown in the car. My daughter has a clue about my recreational activities and she’s never said, Dad, you can’t drive your granddaughter when you’re stoned. Like I said, I’m a safe driver.
Unlike smoking and driving, when drinking and driving is concerned, I’m a novice. I’m not much of a boozehound so I haven’t really gotten drunk that many times to begin with. Once on a New Years after a day’s long party at my in-laws, my wife was far too drunk to drive and while I had had a few, I was more sober than she was so I took the wheel back to the bed & breakfast. I don’t know if I was over the legal limit or not but I felt impaired. It was not a comfortable experience, a bit nerve wracking and not something that I’d like to do again.
So as far as impaired driving is concerned, I haven’t really driven impaired much in my life, with the possible exception of being tired, and I’ve smoked a lot of dope. I lived in Ann Arbor, dope capital of the midwest, for a decade, invented a bong, and been guest listed and backstage all access passed to shows put on by Marin County musicians. They really do indeed smoke the bomb – someone with the Kimock band handed me a fat roach backstage at the Wetlands, I smoked it in the Holland Tunnel and was buzzed off it all the way through Jersey. I’ve known some independent agricultural commodities brokers who moved weight. Some of you may remember when restaurants brought you your check on a little tray from American Express. They were maybe 8″ by 4″, had a small lip around the edge and were made out of blue plastic. I got one and it made a great rolling tray. Once, as a token of his gratitude for some *fungal fun a friend who was a grower and high level dealer left that tray filled up and piled about 3″ high with Thai weed so potent you could almost get high just smelling the stuff.
Obviously, I’ve been under the influence of marijuana many, many times. If you do something, do it well and as long as I can afford it, I prefer something potent and tasty to some commercial dreck, so there have been times when I was pretty high, radioactively high. There was a weekend with some Thai stick and hash oil that ended with everyone looking like they had a blue aura. So I’ve been high, really high, almost tripping high, but I’ve never been impaired behind the wheel as badly as when I’ve been tired. Sleepy drivers are a real danger because there is almost nothing you can do to stop from falling asleep once that process has started. I used to try to tough it out, but then I realized that getting there 20 minutes sooner isn’t worth a wreck. Now when I start to get sleepy behind the wheel and a caffeinated beverage doesn’t do the trick, I pull over at the next rest stop or service plaza and get some shuteye. Then I roll a joint and head for the on ramp.
*Do not, I repeat, DO NOT mix driving and psychedelics – you are definitely impaired when tripping, though I did once set a record on an arcade video racing game after a few microdots. I don’t know if it was P.J., Kenney or Beard, but one of the NatLamp originals said there were three places where it was a really, really bad idea to trip: at work, behind the wheel, and in front of your parents. Want some hippie nostalgia? Once we took some nice cubensis shrooms (the easiest recreational drug you can make at home) and while we were waiting to get off we decided to drive our split window Microbus to a large park that’s laid out on some natural and man made islands in the Huron River. It was a gorgeous day, just a perfect summer day. As we watched our two year old chasing some ducks by the water’s edge we realized that we were in no condition to drive, so we spent a few hours at the park playing with our kid till we came down enough to drive home safely. Remember, if you must trip, trip responsibly.