You still can’t smoke weed and drive — but tests to prove impairment murky

The state law legalizing weed authorizes a study to find the best way to enforce laws against driving while stoned.

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Come Jan. 1, adults in Illinois can legally have pot in their cars, but they still can’t smoke it in them or drive while high.

Driving under the influence of marijuana will still be a crime after the new law takes effect, as the Illinois Secretary of State’s Office makes clear in its 2020 DUI Fact Book:

“A driver may not operate a motor vehicle while impaired by the use of cannabis, whether used medically or recreationally,” the book states.

Passengers can’t smoke pot while in moving cars, either, and although adults who live in Illinois will soon be able to legally buy an ounce of weed, it must be stored in the odor-proof and child-resistant container that it came in when it was purchased at a dispensary.

If a police officer pulls over a driver and the officer suspects the person may be under the influence of marijuana, the driver will be asked to take field sobriety tests.

The effects of smoking pot are obvious and well known — red eyes, drowsiness, slowed response times. If, based on the field tests, the cop has probable cause, the driver will be placed under arrest and taken to a police station.

THC tests problematic

That’s where it can get murky.

Once at the station, the driver would be asked to submit to chemical testing of their “breath, blood, urine or other bodily substance,” according to the secretary of state’s office. The test can be administered within two hours of the driver being pulled over. Blood tests may only be administered by a medical professional, though police can perform breath, urine and “other bodily substance” tests.

If the testing comes back positive for more than 5 nanograms of THC —tetrahydrocannabinol, the primary active chemical in marijuana —per milliliter of blood or for more than 10 nanograms per milliliter of another “bodily substance,” the driver’s license will be revoked, on top of potential criminal charges.

Should a driver refuse the chemical tests, their license will still be revoked, according to the secretary of state’s office.

But that can be problematic, because in some cases THC can remain in a person’s body for weeks or months after use, and there’s no industry-accepted version of a marijuana Breathalyzer.

“The laws are changing across the country and the science has to catch up,” said Harold Wallin, a veteran Chicago DUI defense attorney.

According to NORML, the National Organization for the Reform of Marijuana Laws, a frequent marijuana user can have more than 100 nanograms of THC per milliliter of blood in the time just after ingesting — and it can remain elevated even when someone is no longer high or impaired.

“It may take weeks to decline back below the threshold of detection,” according to NORML.

Wallin said the 5 nanogram limit was created in an effort to liken marijuana DUIs to alcohol DUIs, but it’s not adequate.

“They’re taking what’s worked for alcohol and [are] just trying to come up with some equivalent, except it doesn’t work the same way,” Wallin said.

Whether the number of people who drive while high will increase remains to be seen.

In Denver in 2013, the year before recreational pot legalization went into effect in Colorado, about 1 percent of the nearly 3,000 DUI arrests were marijuana-related. In 2017, the number had increased to about 2 percent of total DUI arrests, which remained around 3,000.

Chicago police did not respond to a request for comment on whether police will be on heightened alert for such drivers or whether police expect to make more arrests for driving under the influence of cannabis.

Task force to study driving on pot

In legalizing recreational marijuana use among adults, the state also created the DUI Cannabis Task Force “to study the issue of driving under the influence of cannabis.”

The task force will be made up by representatives from statewide law enforcement groups, as well as defense lawyers and other affiliated civil and constitutional rights-focused organizations. It is obligated to meet at least three times and present to Gov. J.B. Pritzker and the state general assembly a “report and recommendations on improvements to enforcement of driving under the influence of cannabis” by July 1.

The law also stipulates that the Illinois State Police must submit a yearly report to the governor that details, among other things, “the available and emerging methods for detecting the metabolites for delta-9-tetrahydrocannabinol in bodily fluids, including, without limitation, blood and saliva” as well as “the effectiveness of current DUI laws and recommendations for improvements to policy to better ensure safe highways and fair laws.”

The ISP did not respond to questions about what kinds of data and analysis will go into that report.

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