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Beware unreliable handheld breath tests for marijuana impairment

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Law enforcement and tough-on-crime politicians rely too heavily on testing for alcohol to determine whether one has violated the drinking and driving laws, rather than to return to the sensible days when breath and blood testing (with breath testing already being highly flawed) was but one factor in looking at the totality of the circumstances to determine the existence of guilt or innocence under the drinking and driving laws. Ultimately came federal legislation around twenty years ago that gave states a choice between making it a crime to drive with a blood alcohol level of 0.08 or higher, or to lose federal highway funding. The money talked and our civil liberties consequently suffered.

As efforts to legalize recreational and medical marijuana make amazing inroads state by state, law enforcement and politicians argue about risking a resultant increase in people driving under the influence of marijuana. It is critical that the totality of the circumstances be considered before convicting for driving under the influence of marijuana, alcohol or any other drug. Furthermore, breath and blood tests for marijuana are not sufficiently conclusive about whether the marijuana was impairing the driver’s ability safely to drive, seeing that marijuana stays in one’s bloodstream for weeks.

Unfortunately, in our society that all too often seeks quick fixes, and quick and inexpensive "justice" for criminal suspects, it is no surprise that efforts are afoot to develop technology to breath test drivers for marijuana in their systems. Paul Armentano of the National Organization for the Reform of Marijuana Laws has recently penned an article underlining the failings of breath-testing drivers for marijuana. Moreover, breath testing is going to be less accurate than blood testing for determining whether one has consumed marijuana and its concentration in the blood.

Ordinarily harsh on suspects charged with driving under the influence, even the National Highway Transportation Safety Administration ("NHTSA") admits that with "the exception of alcohol, toxicology cannot produce ‘per se’ proof of drug impairment." NHTSA also recognizes that the "lack of consensus about per se levels of drugs where impairment could be deemed makes it difficult to identify, prosecute or convict drugged drivers in most states."

If marijuana consumers avoid driving when still impaired by marijuana (but legal definitions of impairment sadly can include slight impairment, depending on the jurisdiction), perhaps law enforcement and politicians will give less focus on new ways to catch and convict people with marijuana in their systems.