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New Law for Driving while High

It’s called a “per se” law and most are familiar with it from DUI regulations. Under per se, someone is guilty of a crime when they meet some standard, without the prosecution having to prove intent. For DUI, if you have a blood alcohol level over 0.08%, you are, by definition, guilty of the offense of driving while intoxicated – impairment is assumed and the prosecution doesn’t have to prove you were driving erratically.

With the passage of House Bill 1441, the same standards now apply in Oklahoma to marijuana consumption, except there’s a problem.

Unlike alcohol, which is cleared from our bodies relatively quickly, the compounds in marijuana stick around. For a regular smoker, cannabis compounds can appear on a drug test for weeks, or even a month after they quit. This is because the compounds in marijuana are fat soluble and some deposit in fatty tissue. When those fat stores are used by the body, the compounds are released again. Although the amounts can be quite small, and no one would think they were enough to cause intoxication, they are enough to be detectable on a drug screen.

Some states have tried to address this problem by setting a ceiling on how much THC can be in someone’s system, but Oklahoma will join states with a zero-tolerance policy, meaning any level at all can trigger a charge. Other states with a zero-tolerance policy are: Arizona, Delaware, Georgia, Illinois, Indiana, Iowa, Michigan, Rhode Island, Utah, and Wisconsin.

Marijuana advocates, especially in states where it is legal for medical purposes, point out that using per se laws in this way isn’t scientific and can only lead to false arrests. They say, correctly, that someone could test positive for marijuana even if they were only in the presence of someone smoking the plant. Further, advocates say there has never been a study that links specific blood levels of THC to the inability to drive safely. This is different than alcohol, where the blood levels are based on average performance.

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