DUI Checkpoint

An Oklahoma Highway Patrol trooper gives a man suspected of driving under the influence a sobriety test in 2016. The suspect was arrested on DUI after marijuana was found in his car. Tulsa World file

Oklahoma law enforcement officials say many of their questions about legalized medical marijuana are not addressed in the upcoming state question, which they say could create confusion about enforcement practices.

State Question 788 will ask voters to weigh in on medical marijuana during the June 26 primary. Steve Emmons, executive director of the Oklahoma Association of Chiefs of Police, expressed many concerns about language the measure lacks that he said shouldn’t be ironed out on the fly.

“It’s pretty massive for something that is coming up this soon,” he said.

Chief among those concerns is how agencies will handle enforcement. Currently, Oklahoma has a zero-tolerance law saying that any positive test for THC, the psychoactive component in marijuana, or its metabolites is considered driving under the influence. The language of SQ788 fails to exempt licensed patients from that law, nor does it provide a legal limit for THC in the blood while operating a vehicle.

Emmons said that could force officers to make enforcement decisions on a day-to-day basis, which could lead to confusion and criticism.

“It’s creating a question mark for officers to have to figure out while they’re standing out on the street,” he said.

The Oklahoma Association of Chiefs of Police officially opposes SQ788.

More than a year ago, the state Board of Tests For Alcohol And Drug Influence approved two oral fluid tests that use saliva to indicate the presence of THC, according to J. Kevin Behrens, the agency’s director.

The Tulsa Police Department and the Tulsa County Sheriff’s Office, as well as the Oklahoma Highway Patrol, don’t currently use those tests.

Behrens said the tests aren’t widely used in the field, though studies with the devices have been conducted in Oklahoma and across the country.

The Board of Tests regulates the testing methods that law enforcement use to determine impairment and intoxication, and the board trains departments with the various technologies.

Behrens said the board is currently working with agencies like the Oklahoma Highway Safety Office and the OHP to implement oral fluid tests for marijuana, though there are training and policy measures that must be addressed.

“There are a lot of moving parts,” he said.

Such devices would be the first line of testing if someone is suspected of driving under the influence of marijuana, as they simply detect the presence of THC. From there, a blood test would determine the amount of THC in a person’s system.

According to the Governors Highway Safety Association, five states have laws dictating the level of THC that can legally be in someone’s blood — 5 nanograms per milliliter of blood, for example — before that person is declared intoxicated. Behrens called these numeric thresholds “arbitrary.”

“I use the word arbitrary not accidentally,” he said. “There’s no real evidence that there is any level that you (can) say, ‘Everyone is impaired at this (amount of THC in the blood).’”

Behrens noted that the body metabolizes substances in different ways, and thus marijuana can’t necessarily be treated the same as alcohol.

Even so, he cautioned against any level of impaired driving.

“There’s no safe level to either drink or ingest marijuana and drive,” he said. “Impairment begins at any departure from zero on those substances. People just need to not drink and drive or smoke and drive.”

Part of the problem with marijuana-intoxication tests is that THC and its metabolites can remain in a person’s system for days or weeks after just one use. So saliva tests, and even blood tests performed within two hours of a person’s arrest on suspicion of DUI, would fail to indicate how recently the person consumed marijuana.

The cognitive effects of using marijuana also cannot be predicted and differ widely depending on the individual user, but Emmons said he believes some sort of standard needs to be established.

Some of Emmons’ other concerns included whether public safety officers can use marijuana, safe storage practices around children and the disparity between federal and state law.

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Reece Ristau



Twitter: @reecereports

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