Nevada bill would overhaul marijuana DUI law, considered ‘unscientific’ predictor of whether driver is impaired

Legislators are looking to update Nevada laws that could lead to people being convicted of driving under the influence of marijuana even if they were stopped by police long after they last consumed.

Assemblyman Steve Yeager (D-Las Vegas) on Monday presented AB400, which would remove from the law specific “per se” limits for cannabis metabolites that can be in a person’s blood to trigger a DUI. Proponents of the bill say such thresholds are a poor reflection of how impaired a person is because of how cannabis is metabolized by the body differently than alcohol, and argue they were set at a time when no amount of marijuana was acceptable.

“These limits have nothing to do with either science accurately determining impairment or promoting public safety,” Paul Armentano, the deputy director of marijuana legalization advocacy group NORML, told members of the Assembly Judiciary Committee. “These arbitrary limits were enacted at a time when Nevada imposed blanket prohibition on the possession and use of cannabis for any purpose. This is not the case any longer. Hasn't been for some time.”

While alcohol can be completely eliminated from the body in a matter of hours, THC — the psychoactive ingredient in marijuana — remains detectable for days after a person last consumes, even if the person is no longer high.

Armentano, who was co-presenter with Yeager, said he believes the thresholds came about because they were the “lowest levels of quantification” at the time the law was enacted — in other words, the smallest amount of THC that technology at the time could detect with precision that would be acceptable by a court. He compared the levels to a blood alcohol content of 0.01 percent, which would be detectable in a blood test but well below the legal driving limit.

But the bill faced significant opposition from police, prosecutors and employers worried about the implications for workman’s compensation insurance, who said it would make it more difficult to hold people accountable for being under the influence of marijuana.

Las Vegas Police Detective Dwaine McCuistion, who investigates fatal traffic accidents, gave the example of a woman who drove her Camaro 100 miles per hour into a school zone, striking a car and killing the children inside. When she was taken to the hospital and her blood was drawn, the test showed cannabis in her system.

“If we were to remove the per se that we have right now, there would be no way for me to prosecute this case. What would I tell the family members at that point?” he said. “I'm sorry I can't prosecute the person who killed your family members. I'm sorry that Nevada law prevents me from bringing you justice.”

John Jones of the Nevada District Attorneys Association said that in serious crashes, police often don’t have a chance to conduct a field sobriety test or observe the driver’s behavior because they have been disoriented or are being rushed to the hospital.

“This bill as currently written would really hinder our DUI marijuana prosecutions,” Jones said. “We don't have the ability to make all the physical observations and perform all the physical tests to prove a DUI beyond a reasonable doubt in the absence of blood results.”

Yeager countered that in the Camaro example, the driver could be prosecuted for other crimes during the incident, such as excessive speed. And he said that toxicology results could still be used in a case, although they could not be the sole piece of evidence on which someone is convicted of DUI.

Opponents also raised concerns about how removing the per se limits from law might make it difficult for an employer to prove that a worker was impaired by marijuana when an accident happened on the job. That means the employer could be on the hook in a worker’s compensation claim even if the worker was at fault for consuming cannabis.

“Many of these workers are operating heavy machinery and conducting hazardous jobs and endanger the safety [of their coworkers] by being under the influence,” said Shaun Meng of the Nevada Self Insurers Association.

Yeager said that he was open to working on the portion of the bill that dealt with workman’s compensation. That portion is connected with the DUI statute in Nevada law, something Yeager said was likely an effort to ensure laws on impairment were consistent with the latest science.

Another criticism came from trucking interests, who say that taking the thresholds out of law could put Nevada out of compliance with regulations that prohibit commercial truckers from using marijuana. If Nevada cannot revoke a commercial driver’s license if someone is found to have used marijuana — which is still considered a Schedule 1 controlled substance at the federal level — the state might lose federal grant money, several people testified.

Lt. Don Plowman, manager of the Nevada Highway Patrol’s Motor Carrier Safety Assistance Program, suggested the bill exclude commercial drivers, who are held to a higher standard than regular drivers because their vehicles are generally larger and more potentially lethal.

Armentano said he didn’t understand the concern because most states do not have per se limits in their law for marijuana DUIs and do not seem to have problems issuing commercial driver’s licenses.

Yeager, who chaired an interim committee studying marijuana DUIs that did not finish its work because of the pandemic, pointed out that even Clark County District Attorney Steve Wolfson has publicly acknowledged Nevada law is murky around marijuana intoxication and needs to be reviewed. Wolfson’s employee, Jones, testified against the bill and wanted the interim committee to do more work before changing the law.

“Impaired driving will continue to remain illegal in our state, doesn't matter what the substance is,” Yeager said. “My main concern with this bill is to make sure that drivers aren't being unfairly convicted of impaired driving when they're not actually impaired.”

The hearing was the first major step for the bill. The committee did not vote on the measure.

— This report was used with permission of The Nevada Independent. Go here for updates to this and other stories.