Marijuana DUI law challenged

The Assembly Judiciary Committee was told Monday Nevada's marijuana driving under the influence law will eventually be overturned in court, unless it is changed.

Assemblywoman Chris Giunchigliani, D-Las Vegas, introduced AB362, saying current law declares anyone with more than 2 nanograms of "marijuana metabolyte" in their system to be under the influence.

She said that means someone can be convicted of DUI days, or even weeks, after using marijuana -- long after its intoxicating effects are gone.

Deputy Clark County Public Defender Howard Brooks told the committee the existing law doesn't measure intoxication and, therefore, will eventually be overturned by the courts.

"This bill strengthens the DUI law by tying criminal liability to impairment, and impairment is what we want to stop," he said. "If this bill doesn't pass, I feel it will only be a matter of time before we are able to successfully challenge the current law."

Giunchigliani told the committee she isn't trying to weaken the law, only to make sure that those who are convicted of driving under the influence of drugs are actually guilty. She said -- and two chemists who operate marijuana-testing programs agreed -- that the appropriate thing to measure is the amount of the active marijuana ingredient THC in someone's blood.

But Dan Berkable, director of the American Toxicology Institute in Southern Nevada, and William Anderson, head of the Washoe County crime lab toxicology division, disagreed over how much Delta 9 THC it takes to be under the influence.

Berkable said metabolyte, especially in a regular marijuana user, "will just stay in the bloodstream at a certain level for days, weeks." He said that doesn't mean the person is an impaired driver for days or weeks, because the effects of the drug are usually gone within a couple of hours.

Berkable said setting the legal limit at 15 nanograms of THC, instead of 2 nanograms, would fix the problem.

Anderson, however, said that's way too high. He said THC disappears so rapidly from the blood that someone may be double or even triple that limit when they are stopped, but well below it an hour or two later when tested by law enforcement.

He pointed out that, of 531 tests in Washoe County's lab, 319 were positive, and the average was just 6 nanograms of THC in the blood. He said if the legal limit is set at 15, almost none of those stopped would have been guilty.

"The level at the time of the blood draw is not the level at the time of the stop," he said.

The committee took no action on the bill.