AUGUSTA — Lawmakers on the Legislature’s Transportation Committee will consider a bill Tuesday that allows police to test drivers for operating under the influence of marijuana or, more precisely, the plant’s active ingredient, THC.
The bill calls for a blood-level limit that’s modeled on alcohol blood-level limits now set in Maine law and would allow police to use new breath-testing equipment as it’s developed.
But opponents, including lawmakers and defense attorneys, are raising concerns that a nanogram impairment standard for marijuana is not based in the best science.
Colorado, which legalized recreational marijuana in 2013, uses the 5-nanograms of THC per milliliter of blood standard. But the state of Washington uses a 25-nanogram standard.
The Maine bill also makes driving under the influence of marijuana at the 5-nanogram level a criminal offense and leads to an automatic driver’s license suspension that’s equivalent to the suspensions issued for drunken driving.
Sponsored by Rep. Andrew McLean, D-Gorham, the commitee’s House chairman, LD 1320 also sanctions the use of “approved preliminary breath-testing devices ” to check for marijuana use.
A number of other states, including Alabama, are also considering bills that would use the 5-nanogram standard for marijuana.
The bill would also allow the secretary of state to administratively and automatically suspend the driving license of a person found to be operating under the influence of marijuana, the same way state law allows for license suspensions for drunken drivers.
“I’m in favor of reducing impaired drivers, however, this is not scientifically sound at this point and we should base our recommendations on science,” Rep. Diane Russel, D-Portland, said. Russell said the bill presents another challenge in that it doesn’t address how law enforcement should deal with medical marijuana patients, who have legal permission in Maine to use the drug.
“They may have built up a tolerance to THC, which is not uncommon and five nanograms could be nothing and they could just be perfectly fine,” Russell said.
Russell said she’s concerned the proposal will, “wrap up medical marijuana patients in a way that is disconcerting.”
A handful of other states, including Illinois, are looking at setting THC blood limits as high as 15 nanograms per milliliter.
Opponents say THC levels can linger in a person’s blood stream days after they last smoked or ate marijuana. Alcohol and marijuana are vastly different drugs and shouldn’t be treated the same for the sake of simplification, they say.
“The science behind THC levels and impairment from THC is much more complex than alcohol,” Wayne Foote, a Bangor attorney and member of the Maine Association of Criminal Defense Lawyers, which opposes the THC part of the bill, wrote in testimony to the committee.
“Alcohol has a direct and proportional effect on people. As alcohol levels go up, impairment goes up,” Foote wrote. “As the levels come down, impairment comes down. Even people who drink regularly, and who might develop the ability to talk or walk with high alcohol levels, are still impaired at 0.08 percent.”
Foote said that same pattern doesn’t hold true for THC.
“A non-frequent user of marijuana may be impaired at fairly low levels of THC. Regular users, however, are much less likely to be impaired at levels of (5 nanograms per milliliter of blood),” he wrote.
But those offering support for the bill include the Maine Chiefs of Police Association, an association of statewide police chiefs.
“The National Highway Transportation Safety Administration says that one in nine operators involved in fatal crashes across the nation will test positive for marijuana,” York police Chief Doug Bracy wrote in testimony to the committee. “Their statistics reveal that marijuana-related fatalities have tripled in America in the last decade.”
Bracy said the 5-nanogram standard was conservative but its aim is to protect public safety on Maine’s highways.
“There will be those who say the limit is too low,” Bracy wrote. “But we believe utilizing the same standards of probable cause as alcohol OUIs places the burden to show impairment on law enforcement before any test can be administered.”
The bill, which is the subject of a 1 p.m. workshop Tuesday, would also make a number of other unrelated changes to the state’s motor vehicle laws, including increasing the registration fee for an antique vehicle from $15 to $30 and increasing the fee for a duplicate learner’s permit from $2 to $5.
The bill also changes the definition of a pickup truck by increasing the gross weight from 6,000 pounds to 10,000 pounds. The effect would be to allow lighter trucks to be registered as passenger vehicles.
David Boyer, the director of the Campaign to Regulate Marijuana Like Alcohol, one of two statewide ballot campaigns hoping to put a legalization question before Maine voters in 2016, criticized the decision to include the marijuana impairment standard in a bill that otherwise looks to be making small fixes or changes to the law.
“This is a big policy change that could criminalize thousands of Mainers and they shouldn’t try to sneak it into a bill like this under the radar,” Boyer said.
Boyer also said he disputes the science of the bill and said if the state is going to set a limit for marijuana it should also set a blood standard for impaired driving for other drugs, including opiate-based painkillers like OxyContin.
“I think the consensus in Maine is that opiates pose a far greater danger than marijuana,” Boyer said.
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