Driving under the influence of marijuana is already a crime in Minnesota. That will not change when Minnesota legalizes marijuana. DUI-marijuana will still be a crime.
Some fear that legalization will equate to more DUI-marijuana cases. An unstated premise of that fear is that more people will use marijuana because of legalization. This, in turn, will lead to more DUI-marijuana cases, they say. Let’s take a look at that premise first.
Will legalization lead to significantly higher rates of marijuana usage in Minnesota?
A majority of Americans have used marijuana at least once in their lifetime.
But what about regular users? In a 2017 survey, “overall, 14.6 percent said they had used cannabis in the past year, while 8.7 percent said they had used the drug in the past 30 days.” So, most people who tried marijuana, just don’t like its effects.
Some evidence supports the possibility that usage rates could eventually decline after legalization.
Why is that important? Because opponents of legalization fear that legalization will increase the number of DUI-marijuana cases. The implicit premise of that argument is that “no one uses marijuana now, but many will because of legalization.”
Don’t people already use marijuana?
Of course, we know that people already use marijuana, despite the laws criminalizing it in Minnesota. In fact, more than half of the people have tried it at least once in their lifetime. Yet, despite that, only a small percentage have used in the past year – less than 15 percent. So, most people who try it, don’t like it enough to keep using it.
|Lifetime – used once or more||86%||80% (of 55 year-olds); 55% overall|
|Within past year – use||70%||14%|
|Within past month – use||56%||9%|
After legalization, some may try marijuana out. But as in countries and states where it’s legal now, most won’t like it. The claim that legalization will increase usage rates in the medium or long-term, lacks evidence. And lower usage rates in countries like Holland and Portugal contradict that claim.
Ok. But regardless of whether usage rates increase or decrease, what about DUI-marijuana? How does marijuana affect driving for those who do use it?
Do marijuana users drive under the influence?
There is no evidence to suggest that most people who use alcohol or other drugs drive under the influence. Most people who use drugs like alcohol are responsible. They do not drive while impaired. Of course, some do. And that is a big problem.
Why is it a problem? Because impaired drivers are at greater risk of causing a car accident due to bad driving. And some car accidents lead to injury or death. That’s the real problem with DUI.
Most marijuana users are responsible too. They avoid driving while impaired by marijuana. But similarly, some few will be irresponsible and will drive DUI-marijuana. When they do, are the risks of an injury or death accident similar to the risks for alcohol?
No, the risks are less for marijuana than for alcohol.
Says who? The scientific studies, and the National Highway Traffic Safety Administration (“NHTSA”).
Comparative risks of a car accident, with links to authorities
The psychoactive ingredient in marijuana is THC. THC-positive drivers typically possess a low — or even no — risk of motor vehicle accident compared to THC-negative drivers. Those drivers are not DUI-marijuana violators.
Blood THC has little effect on unfavorable traffic events
“The primary objective of this study was to analyse whether there is a significant association between driving under the influence of cannabis and unfavorable traffic events. … Our analysis suggests that the overall effect size for driving under the influence of cannabis on unfavorable traffic events is not statistically significant.” The association of unfavorable traffic events and cannabis usage: A meta-analysis, Frontiers in Pharmacology, 2018
“For both sober and drinking drivers, being positive for a drug was found to increase the risk of being fatally injured. When the drug-positive variable was separated into marijuana and other drugs, only the latter was found to contribute significantly to crash risk.” Drugs and Alcohol: Their Relative Crash Risk, Journal of Studies on Alcohol and Drugs, 2014
Marijuana use can impair driving but does not always lead to a DUI-marijuana driver.
Compare Odds Ratios (OR): between 1.05 and 1.4 on motor vehicle crash risk for acute cannabis intoxication vs. THC positive
“Acute cannabis intoxication is associated with a statistically significant increase in motor vehicle crash risk. The increase is of low to medium magnitude (OR between 1.2 and 1.4).” The effects of cannabis intoxication on motor vehicle collision revisited and revised, Addiction, 2016
“Adjusted odds ratios between drug class use and crash risk, adjusted for demographic variables: age, gender and race/ethnicity: THC = 1.05.” US National Highway Traffic Safety Administration, Drug and Alcohol Crash Risk, 2015
When it comes to suspected DUI-marijuana, acute intoxication is not the same as presence of some THC.
Compare to Odds Ratios (OR) 2.2, for operating a vehicle with multiple passengers
Drivers with two or more passengers in the car possess a crash risk of more than two-fold (OR=2.2). The contribution of passengers versus mobile phone use to motor vehicle crashes resulting in hospital attendance by the driver, ScienceDirect, 2007
Driving with two or more passenger is a greater risk of a crash than acute cannabis intoxication. So does acute cannabis intoxication equate with DUI-marijuana, given the lower risk?
Compare to consuming slight amounts of alcohol
Driving with BAC levels .05 and .08 are more than six times more likely (OR=6.40) than of a sober driver to be responsible for a fatal motor vehicle accident. Cannabis, alcohol, and fatal road accidents, PLOS One, 2017
Compare to driving while pregnant: 42 percent relative increase in crash risk
Driving while pregnant is equivalent to a 42 percent relative increase in crash risk. Pregnancy and the risk of a traffic crash, CMAJ, 2014
Comparable to risk of driving while talking hands-free cell phone
“The maximum risk for cannabis intoxication alone, unmixed with alcohol or other drugs, appears to be more comparable to risks such as talking on a hands-free cellphone (legal in all states) than to driving with a BAC above 0.08, let alone the rapidly-rising risks at higher BACs.” Driving while stoned: Issues and policy options, BOTEC Analysis/SSRN white paper, 2018
If cannabis intoxication is the same risk factor as a hands-free cell phone, does it amount to DUI-marijuana?
Compare to texting and driving: collision risk 23 times greater
“When the drivers texted, their collision risk was 23 times greater than when not texting.” In Study, Texting Lifts Crash Risk by Large Margin, New York Times, 2009
Compared to alcohol, medicinal opioids, and other drugs
“The highest risk of the driver being severely injured was associated with driving positive for high concentrations of alcohol (≥0.8 g/L), alone or in combination with other psychoactive substances. For alcohol, risk increased exponentially with blood alcohol concentration (BAC). The second most risky category contained various drug-drug combinations, amphetamines and medicinal opioids. Medium increased risk was associated with medium sized BACs (at or above 0.5 g/L, below 0.8 g/L) and benzoylecgonine. The least risky drug seemed to be cannabis and benzodiazepines and Z-drugs.” Risk of severe driver injury by driving with psychoactive substances, Accident Analysis and Prevention, 2013
“The study concludes that drug use, especially alcohol, benzodiazepines and multiple drug use and drug–alcohol combinations, among vehicle drivers increases the risk for a road trauma accident requiring hospitalization. … No increased risk for road trauma was found for drivers exposed to cannabis.” Psychoactive substance use and the risk of motor vehicle accidents, Accident Analysis and Prevention, 2004
Context deepens understanding
Conclusion? Marijuana can impair driving. But far less than alcohol impairs. And it’s less impairing than other common legal practices like multiple passengers, and driving while pregnant. While it can cause impaired driving, we should view DUI-marijuana fairly. We should view it along with other common risk factors for drivers.
Safer than alcohol
When it comes to driving, marijuana is safer than alcohol.
And it’s safer than driving with two or more passengers. Here are the facts, with links to the science.
What does the science say about how marijuana intoxication affects driving?
Dosage matters. But acute marijuana intoxication may influence psychomotor skills, such as reaction time, necessary to safe operation of a motor vehicle.
But these effects are relatively short-lived. And they are less dramatic than changes in psychomotor performance associated with drivers under the influence of alcohol.
Marijuana associated with conservative driving; alcohol with aggressive driving
In studies of on-road or simulated driving behavior, subjects under the influence of cannabis tend to drive cautiously. They compensate for perceived intoxication. They reduce speed and change lanes less. But subjects under the influence of alcohol tend to drive in a more reckless, aggressive manner.
“The compensatory behavior exhibited by cannabis-influenced drivers distinctly contrasts with an alcohol-induced higher risk behavior, evidenced by greater percent speed.” Cannabis effects on driving longitudinal control with and without alcohol, Drug and Alcohol Dependence, 2016
“Subjects seemed to be aware of their impairment after THC intake and tried to compensate by driving slower, alcohol seemed to make them overly confident and caused them drive faster than in the control sessions.” Effects of THC on driving performance, physiological state and subjective feelings relative to alcohol, Accident Analysis and Prevention, 2008
“Experimental research on the effects of cannabis … indicate … that any effects dissipate quickly under one hour. Furthermore, while drivers feel high, they actually tend to compensate for their feelings.” US National Highway Traffic Safety Administration, State of Knowledge of Drug-Impaired driving: FINAL REPORT, 2003
“THC’s effects differ qualitatively from many other drugs, especially alcohol. For example, subjects drive faster after drinking alcohol and slower after smoking marijuana. … Very importantly, our city driving study showed that drivers who drank alcohol over-estimated their performance quality whereas those who smoked marijuana under-estimated it. … “[S]ubjects in the marijuana group were not only aware of their intoxicated condition, but were … attempting to compensate for it. [D]rivers become overconfident after drinking alcohol and … become more cautious and self-critical after consuming low doses of THC, as smoked marijuana.” US National Highway Traffic Safety Administration, Marijuana and Actual Driving Performance, 1993
Attempting to equate DUI-marijuana with DUI-alcohol is a mistake.
But many, not yet knowing any better, assume this false equivalency.
Studies find that THC adverse effects are small, and sometimes improved driving performance
Compared to alcohol, subjects in on-road driving performance assessments typically demonstrate modest changes in psychomotor performance after administering THC.
While THC can reduce driving performance, it has sometimes improved driving performance; compared to control groups with no THC or alcohol.
“Most marijuana-intoxicated drivers show only modest impairments on actual road tests. … Although cognitive studies suggest that cannabis use may lead to unsafe driving, experimental studies have suggested that it can have the opposite effect.” The effect of cannabis compared with alcohol on driving, The American Journal on Addictions, 2009
“THC’s adverse effects on driving performance appear relatively small.” US National Highway Traffic Safety Administration, Marijuana and Actual Driving Performance, 1993
THC in the blood alone does not mean the driver is DUI-marijuana.
Driving with blood plasma THC in context
The main, psychoactive ingredient in marijuana is THC. It can cause driving impairment in some drivers, though nowhere close to the effect of alcohol.
Odds of motor vehicle crash risk, compared to sober, normal driver:
- Alcohol (BAC levels .05 and .08): more than 600% increase
- Drivers with two or more passengers: 220% increase
- Driving while pregnant: 42% increase
- Acute cannabis intoxication: up to 40% increase (similar to driving while talking on hands-free cell phone)
Understanding the difference between THC and its metabolites
To understand the issue of DUI-marijuana, we need to know about metabolites.
The human body’s metabolism breaks down food and drug chemicals into other, different chemicals. We call the products of this natural process “metabolites.”
Metabolites of alcohol
Take alcohol, for example. After a person drinks alcohol, their body gets to working metabolizing it; breaking it down.
The body metabolizes alcohol in several steps. Enzymes help break up the alcohol molecule, for better elimination. An enzyme metabolizes alcohol to acetaldehyde. Then, in the next step, the body metabolizes acetaldehyde down to another, less active byproduct called acetate. Then the body breaks down acetate into water and carbon dioxide.
So, acetaldehyde, acetate, water and carbon dioxide are all metabolites of alcohol.
Metabolites of THC
In the case of THC (delta 9-tetrahydrocannabinol, or▵9_THC), labs test for two of its metabolites: hydroxyl-THC and carboxy-THC. These common names for the metabolites can be confusing, because:
- The metabolites, hydroxyl-THC and carboxy-THC, are not THC; but;
- both have “THC” in their names.
This misleads many into thinking that the metabolites are THC. But they are not. They are chemicals other than THC, which result from the body metabolizing and breaking down THC into different chemicals.
Carboxy-THC is not psychoactive
According to information provided by the National Highway Traffic Safety Administration (“NHTSA”), Carboxy-THC is “not psychoactive.” Drugs and Human Performance Fact Sheets, Cannabis / Marijuana (Δ 9 -Tetrahydrocannabinol, THC), NHTSA:
Plasma THC concentrations generally fall below 5 ng/mL less than 3 hours after smoking. THC is highly lipid soluble, and plasma and urinary elimination half-lives are best estimated at 3-4 days, where the rate-limiting step is the slow redistribution to plasma of THC sequestered in the tissues. … Plasma THC concentrations in occasional users rapidly fall below limits of quantitation within 8 to 12 h. THC is rapidly and extensively metabolized with very little THC being excreted unchanged from the body. THC is primarily metabolized to 11-hydroxy-THC which has equipotent psychoactivity. The 11-hydroxy-THC is then rapidly metabolized to the 11-nor-9-carboxy-THC (THC-COOH) which is not psychoactive.”
While THC in the blood can impair some drivers, Carboxy THC cannot. Carboxy THC is not evidence of DUI-marijuana, ever.
Blood THC vs. Carboxy THC
Unlike urine, blood tests combined with other evidence, can support allegations of being under the influence of marijuana. Studies have shown that high THC blood levels can coincide with impaired driving. But low THC blood levels have almost no relation to bad driving. And sometimes THC positive drivers have shown improved driving.
Carboxy-THC has zero psychoactive effect. It cannot affect driving one way or another. It’s a metabolite of THC. But it’s not THC. So then why test for it?
A positive lab test for Carboxy THC shows past marijuana use. But it does not show recent use.
In fact, the first time you smoke marijuana you’ll immediately have THC in your blood, but no Carboxy-THC. Your body will need time to break down the THC, first into Hydroxy-THC, then in Carboxy THC.
So Carboxy-THC can indicate lack of recent use, in this situation. In any event, Carboxy THC cannot and does not indicate recent use, or possible impairment. It’s not evidence of DUI-marijuana, as a result.
Just because you can, should you?
Labs can and do commonly test for THC and the metabolites Hydroxy THC and Carboxy THC. Lab reports usually show levels for all three.
In other contexts, you may want to know about marijuana use in the past month or so. For example, a probation officer might want to know, where a condition of probation is “no use of non-prescribed marijuana.”
But in a DUI-marijuana case, a positive lab result for Carboxy THC has no probative value. Because it does not prove recent use.
On the other hand, an actual blood THC level is evidence of use within the past 12 hours or so.
Would legalization increase marijuana-DUI cases?
People are using marijuana illegally in Minnesota right now. Most are responsible and avoid driving under the influence. And Driving Under the Influence of marijuana is already a crime.
No one really knows whether more people will use marijuana in Minnesota when it’s legal, compared to now. Some may be less interested, once legal. And though most people have tried it, most who try it do not become regular users. They just don’t like the effect of marijuana. Legalization is not going to change that.
But if there were an increase in users; how many would choose to drive after using? And if they did, what risk to public safety does that present?
We know that driving with 0.08 BAC alcohol or with two or more passenger is riskier. And we know that the risk is comparable to driving while pregnant or while talking on your hands-free cell phone.
All of those create elevated risks. But the fear, that driving after using marijuana is the same as driving after drinking alcohol, is not based on evidence.
To equate the problem of DUI-marijuana with the problem of DUI-alcohol is a false equivalence. They are not equal risks. Not even close.
About the author
Thomas C. Gallagher is a Minneapolis criminal defense attorney. Gallagher defends clients from charges of DUI-marijuana.
He teaches Continuing Legal Education courses on Marijuana DUI law to prosecutors, defense attorneys, and judges.
He also serves on the Board of Minnesota NORML, a nonprofit working to reform marijuana laws in Minnesota.