By July 4, 2023, anyone in Maryland who is old enough to drink will legally be able to possess and use up to an ounce and a half of cannabis. They’ll also be able to grow two plants. Maryland legislators are trying to figure out the logistics of enabling this new right. The initial focus is on helping medical marijuana dispensaries convert their licenses into new medical and recreational licenses. Those new licenses could be then used to start selling cannabis products.
Legislation governing growing, dispensing, and processing cannabis by non-medical marijuana license holders is expected to be in place by 2024, according to the Baltimore Sun. There are concerns about “social equity” factors and “those who live in or went to school in areas of the state that were “disproportionally impacted by the criminalization of cannabis.”
One critical component of the cannabis legislation under review is how to regulate drivers who legally or illegally (depending on the quantity and other factors) use cannabis and then drive a vehicle. Currently, driving under the influence of drugs or alcohol is illegal.
Driving under the influence of alcohol or drugs — including cannabis — will still be illegal under any bill Maryland lawmakers are considering this year. Remember, although it is legal to drink alcohol if you’re 21 years old, you can’t drive if your drinking causes you to become impaired or your blood alcohol concentration (BAC) level is too high.
A key difference is that, unlike alcohol where there are breath and blood tests that read a driver’s (BAC) level, there is no standard test/technology for determining how much cannabis a person has in his/her bloodstream and what amount should rise to the level of a criminal charge.
Drug recognition experts and cannabis impairment tests
Legislators are considering a pilot program, according to The Baltimore Sun, that would grant police the right to test drivers who they believe are impaired by cannabis. This program would enable members of law enforcement to become certified as “drug recognition experts (DREs). These DRES could then ask a driver to complete a test – currently defined only as “a device that is capable of assessing cognitive and physical impairment of motorists.”
The device being considered by the Maryland state senate is manufactured by Cognivue. The device has FDA (US Food and Drug Administration) approval, granted in 2015, to test patients for Alzheimer’s disease and dementia.
Anyone charged with driving while impaired by drugs should understand, that for now, they are:
- Not required to take the Cognivue test.
- Any test results cannot be used as evidence in court
- The test cannot be used (unlike approved field sobriety tests in DUI cases) to assist the officer in determining whether to investigate further or file charges.
If a driver does consent to the Cognivue test, they will “participate in a 5-minute self-test on a plastic device the size of a small briefcase that administers cognitive exercises.” The aim of the test, according to the director of strategic accounts at Cognivue, is to measure the brain’s “processing speed” and “executive function.” The director, Kristen Weber, said that the device is being tested on cannabis users in labs. The device still needs to be tested on roads to see if the police can practically use them.
If the pilot program shows that the Cognivue test works, the legislature will then likely consider incorporating the test into driving while impaired by drugs charges including the use of the test in court proceedings and license suspension hearings.
The pilot program will be effective October 1, 2023, if it is passed by the Maryland General Assembly by April 10, 2023. The Maryland State Police would then need to provide a report/analysis of the program by Dec. 1, 2025.
Another bill under consideration is Senate Bill 51, which would “protect drivers who may not be under the influence of cannabis but may have it in their vehicle.
The two issues – implementing licenses for cannabis use and criminal legislation for driving while impaired and other crimes – are related due to concerns that users may, according to one legislator use cannabis at “‘on-site consumption establishments,’ called “weed bar[s].” One legislator expressed concern about a driver’s sobriety level with marijuana. Another legislator replied that any legalization and implementation of on-site consumption establishments won’t take place “until a second round of recreational cannabis licenses goes out later next year,” meaning lawyers can address the driving while cannabis-impaired laws at that time.
Cannabis testing methods
Urine tests are commonly used to determine if a person has cannabis in their body. This test is commonly used by employers, by the military, and athletic tests. The test may also be used for medical screening. Blood, saliva, and hair tests can also detect if a person has been using cannabis: “Marijuana tests usually measure delta-9-THC, the primary psychoactive cannabinoid in marijuana, and/or its metabolites. Other cannabinoids, including cannabidiol (CBD), are less frequently included in marijuana testing.”
There is a big leap though from tests that show someone has marijuana in their body and showing that the amount detected indicates someone is too impaired to drive a vehicle. Part of the problem with cannabis tests and other drug tests compared to blood tests is that cannabis can stay in someone’s body for a long time (several days or even weeks) after they use cannabis.
A saliva test is commonly used for roadside tests instead of urine tests. Some of the reasons cannabis saliva tests are an unreliable indicator of driver impairment include: “they cannot yet present variations in human tolerance, the amount of time that the THC has been in one’s body, the method of ingestion, or level of intoxication[impairment].”
Urine and blood tests are not roadside-friendly and have their own sets of reliability/validity issues for proving actual impairment. Generally, current roadside tests don’t test for the quantity of cannabis or other drugs.
At Drew Cochran, Attorney at Law, our Annapolis and Ellicott City driving under the influence of drugs lawyer has helped numerous defendants secure their freedom, their reputation, and their driving privileges. We work aggressively to show the police didn’t have grounds to stop you, didn’t conduct tests properly, and failed to use valid tests. To discuss any type of DUI charge, call me now or complete my contact form to schedule a consultation.
And remember: Keep Calm – and Call Drew.
[