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If you spend time in Colorado, you might encounter ads that raise difficult questions about marijuana.

“Would you let a bus driver high on marijuana drive your kids to school?” asks one. “Would you let your doctor perform surgery on you if he was under the influence of marijuana?” another wonders.

The advertisements are part of a campaign by the Colorado Department of Transportation, which struggles with one of the more vexing issues surrounding legalized marijuana, the fact that it’s often hard to tell when a person is too high to drive or perform other tasks where lives are at risk. Experts say marijuana users tend to underestimate the drug’s effect on response times and other processes that may impact a person’s ability to work safely and effectively.

Society’s better-established rules for measuring and dealing with alcohol intoxication don’t translate well to weed, which adds to the difficulty. TCH, the intoxicating compound in marijuana, stays in the blood for a long time, well past when intoxication wears off and up to a month for heavy users, according to the American Addiction Centers. The effects of alcohol, meanwhile, are gone by the time it is out of the bloodstream. This suggests that someone with TCH in their blood may be sober.

“There are problems, circumstances, and consequences of legalizing pot that aren’t the same with alcohol in terms of enforcement and driving under the influence,” said Domenic Trunfio, first chief assistant district attorney in Onondaga County.

Trunfio, along with many other law enforcement officials, and several state lawmakers are opposed to legalization in New York as a result of this difficulty. They don’t want legalization to send a signal that it is OK to drive or perform other important or dangerous tasks while stoned. Despite their opposition, legalization looked set to pass this year. But with state efforts to combat COVID-19 cutting short discussions on legalization, the plans are on hold while some of the thornier issues, like dealing with impaired driving, are worked out.

Some feel the key to overcoming the inherent problems with testing for marijuana is to move away from blood and urine tests and toward being able to recognize intoxication. There is even a job – drug recognition expert – that is in high demand as police departments and employers struggle to keep up with the changing times. Although technology is catching up, with at least one company developing a breathalyzer-type device that would make drug testing easier, if not more effective.

Smoking on the job

Since many people drive or perform other potentially dangerous activities for work, changing marijuana laws is having an effect on the labor market as the number of workers who can pass drug screenings falls. This is forcing employers to reevaluate the pros and cons of drug testing, according to the Human Resources Professionals Association.

Melissa Roth, chief human resource officer of ASPIRE of WNY, which helps developmentally disabled job seekers find work, says she is in favor of moving away from drug tests and moving towards focusing on impairment.

Organizations should evaluate “how someone’s performance or behavior is affecting their ability to do their job,” Roth said. “If people are just relying on whether they passed the drug test, they’re not going to get quality employees.”

THC's tendency to linger in blood creates challenges for regulators

Pot: It sticks around

ASPIRE conducts pre-employment and reasonable-suspicion drug tests that look for marijuana as well as cocaine, opioids, heroin, and other substances. However, if marijuana were legalized, ASPIRE would likely drop marijuana from the test and instead focus on impairment, which is how the nonprofit currently deals with alcohol testing.

“Even though alcohol is legal, you’re not able to come to work drunk,” Roth said. “So, if marijuana is legal, you can’t come to work, go on your break, smoke a joint, and come back to work.”

Behind the wheel

Just how dangerous is driving stoned? So far the evidence is mixed. Fatalities dropped the last two years in Colorado, data from the Colorado Historical Fatality Trends shows. But in New York, fatalities involving marijuana as a complicating factor are on the rise, and the drug is still illegal here.

In the Empire State in 2017, alcohol was a factor in 25% of fatalities, with drugs a factor in 23% of fatal motor vehicle accidents, according to the Institute for Traffic Safety Management and Research. These numbers jumped in 2018 to 31% for alcohol and 34% for drugs. The drug category includes many substances but the Institute for Traffic Safety reports toxicology tests find THC more often than any other drug in the blood tests of drivers involved in fatal car crashes.

A 2019 Colorado billboard campaign aimed at generating discussions about not driving high.

Drug recognition experts have become increasingly important as technology has yet to develop a good method of determining marijuana intoxication, according to Glenn Davis, highway safety manager for the Colorado Department of Transportation.

“A lot of times law enforcement may not know what the person is impaired by,” Davis said. “…just that they’re impaired.”

In these cases, a drug recognition expert is called by the officer who made the stop.

The expert, or DRE, is skilled in identifying people under the influence of drugs and detecting the category of drugs a person is under the influence of, according to the International Association of Chiefs of Police.

The drug recognition expert administers a 12-step, 1½-hour evaluation, which entails determining impairment and whether it is medical or drug-related, said Sgt. Jonathan Cook, drug and alcohol training coordinator for the New York State Police.

“From a DRE perspective, what we’re looking for is impairment, because you can smoke marijuana and not be impaired and you can drink alcohol and not be impaired,” Cook said. “We care about impairment. We don’t care about how much is in your system.”

"We care about impairment. We don't care about how much is in your system."
Sgt. Jonathan Cook, state police drug and alcohol training coordinator

But Onondaga County’s Trunfio says it is not that simple and chemical tests are crucial at trial. “It’s going to be an issue for the defense and the prosecution not to have that concrete evidence,” Trunfio said, adding that a drug recognition expert’s evaluation is subjective and can be challenged in court.

“Like any witness, they’re [the DRE] subject to cross-examination,” Trunfio said. “It’s a subjective ‘What did you observe? Why did you make that decision? Why did you make this call instead of that call?’”

At least one company is trying to overcome this problem with tech. Hound Labs is marketing a product it’s calling a “marijuana and alcohol breathalyzer” that can find the ratio of THC in your breath and convert that to how much would be in your blood. Although that still would not indicate impairment, it would be easier and cheaper to administer than the current blood, hair, and urine tests, according to Cook.

“It’s a very new product,” Cook said. “Until something has been peer-reviewed in numerous reputable magazines, it’s not something I think the courts will consider as legally admissible,” he concluded.

Davis, the highway safety manager for Colorado DOT, agrees.

“While devices are helpful, we don’t want to be arresting or detaining people on devices,” he said. “It’s really on observed impairment.”

The problem is that many people don’t believe marijuana affects their driving. THC in marijuana affects a person’s senses and sense of time, mood, body movement, ability to think and problem solve in the short-term, and breathing and heart rate in the long-term, according to the National Institute on Drug Abuse.

Yet, more than 14 million Americans admit to having driven within an hour of smoking marijuana in the past 30 days, according to a 2019 report by the American Automobile Association.

Cole, the Colorado DOT communications manager, said he thinks he knows why many people get stoned and drive. “There is a belief out there that using marijuana does not inhibit your ability to drive when we know it does,” he said.

That’s why his department helped start the Colorado Cannabis Conversation, a public awareness campaign about the dangers of marijuana. After interviewing nearly 20,000 cannabis users about driving under the influence, researchers advising the program concluded that one set of advertisements called the “uncomfortable ads” were most effective in making people look at stoned driving in a different light. These “uncomfortable ads” include the questions about whether or not you would let a stoned doctor cut you open or a high bus driver take your kid to school.

“If you answered ‘no’ to both of those questions,” Cole said, “then ask yourself ‘why would you drive under the influence of marijuana if you’re putting yourself and others at risk?’”