Raleigh Lawyer Talks About How LA Times Article on Drug DWIs Gets It Wrong

On March 22, the Los Angeles Times published an article attempting to highlight the difficulty with catching stoned drivers. I say “attempting” because ultimately, they do a horrible job. As soon as I read the title “For police, catching stoned drivers isn’t so easy,” I knew I needed to take a deep breath before I read the entire article. Although I practice in North Carolina, I can see many of the ideas promoted in this article are prevalent everywhere. Let’s talk about what the LA Times gets right (little) and what the LA times gets wrong (a lot).

First, the title. The title implies that it should be easy to catch stoned drivers. Why is that the case? Everyone is innocent until proven guilty. The State has the burden of proof. The State has to prove that you are guilty beyond a reasonable doubt. That is a high burden to meet. And it should be a high burden to meet. Why? Because a person’s liberty is at stake. It could be just a fine, or it could be supervised probation, or it could be incarceration. If you are presumed innocent, it should not be “easy” to take away your liberty. There should be enough evidence presented such that there is no reasonable doubt that you are guilty.

North Carolina is different from California. California has legalized recreational pot. North Carolina has not. Let me be clear about this: marijuana use in North Carolina is not legal. North Carolina has not decriminalized marijuana use. It does not matter if it is for personal use or for medical purposes, marijuana use is illegal in North Carolina. The article highlights an interaction with a police officer and a driver who admits to smoking marijuana. Had that happened in North Carolina, depending on additional facts, the driver would have been arrested for DWI and the police would have gotten a search warrant to take blood from the driver. In North Carolina, it is unlikely that a driver who smelled like marijuana would be allowed to drive off without being charged with DWI.

The article goes on to say, “In the case of a drunk driver, a breathalyzer could have confirmed whether the person was impaired by alcohol.” WRONG, WRONG, WRONG. A breathalyzer does not do anything other than “measure” the amount of alcohol in a person’s breath. It does not measure impairment. But even that measurement is not all that accurate. In North Carolina, the actual number result from a portable breath test does not come into evidence. In court, the portable breath test can only be used to show the presence of alcohol. The reason why the actual number does not come in is because they have been shown to be so inaccurate. In North Carolina, the only number that may come in is the breath test result that is conducted at the police station.

The article goes on to ask whether there should be an objective standard in place (such as a .08 or higher blood alcohol concentration) to determine whether a person is legally too stoned to drive. I do not disagree with this point. There should be an objective standard. Before there is an objective standard in place, it should be heavily researched and proven to be highly accurate. Creating an objective standard should not be left at the hands of Mothers Against Drunk Driving or law enforcement.

Lastly, the article mentions that some police departments are using the Dräger DrugTest 5000 machines to detect whether someone has used marijuana recently. It does not measure impairment. It sounds like this is the next step in marijuana detection. It even has a scary machine name (the 5000!) But even the use of this machine is faulty. The National Highway Traffic Safety Administration (NHTSA) published a study last year that showed little correlation between THC levels and driver impairment. And this article (https://thewest.com.au/news/wa/police-drug-test-accuracy-in-doubt-ng-ya-324121) outlines how the Dräger DrugTest 5000 is inaccurate. A 2014 New South Wales police report found that machines were failing to pick up positive readings for THC even when the driver admitted to marijuana use. A New South Wales Police Assistant Commissioner is quoted as saying that officers were experiencing an accuracy rate of approximately 67 percent with their Dräger machines. That is a horrible accuracy rate. It shouldn’t even be called an accuracy rate. It should be called luck.