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States struggle to enforce impaired marijuana driving laws

Massachusetts and other states which legalized recreational use are beginning to implement new laws addressing driving while impaired. However, the absence of valid testing and other problems may be instrumental in mounting an OUI defense against these charges.

The cases are more complicated than prosecuting a typical drunk driving case which can rely on accepted testing such as a breathalyzer. Cases have been successfully defended where there were inaccurate levels, or nanograms. Police have also used inappropriate methods to compel a confession from drivers.

Testing and lack of knowledge have also been instrumental. The active component of marijuana that gives the users a feeling of high, Tetrahydrocannabinols, takes much longer to breakdown than alcohol. THC is fat-soluble and is stored in fat cells while alcohol is water-soluble and stored in the liver.

This means that failing an alcohol breathalyzer test is valid proof that an unacceptable level of alcohol is in a driver's system. However, finding THC in the blood stream does not demonstrate that the driver is impaired or high. Testing may not identify the right form of THC is in the system. Different tolerance and ingestion levels further pose doubt on testing.

According to some experts, this lack of scientifically acceptable testing has led to inconsistencies. Innocent drivers have been unjustly prosecuted while impaired drivers beat tests or were acquitted. Heavy users of marijuana have argued that THC levels come from frequent use and do not demonstrate impairment.

Field sobriety tests are believed to be somewhat more reliable. Experts argue that until a valid test is developed and accepted, law enforcement should depend on several methods. These include use of drug recognition evaluators, modified roadside sobriety tests and the interim use of a saliva test or breath test or handheld performance technology.

Like drunk driving, driving while impaired by marijuana may lead to prosecution, license suspension and fines. Massachusetts may also impose implied consent and open container rules for marijuana. Accordingly, legal representation should be sought immediately to protect rights and fight tainted or invalid evidence.

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