Impaired driving is stupid and dangerous, and protecting Montanans from impaired driving is a good idea. But not all approaches are equal, and some, while good intentioned, can cause more harm than good.
House Bill 168 was up for public comment today at the Capitol. This bill, introduced by Republican Rep. Doc Moore of Missoula, would establish a per se form of DUI that is specific to detectable amounts of THC in the bloodstream.
There are two types of DUI offenses. The first is based on actual impairment while driving. Its where we get the familiar roadside sobriety tests like the walk-and-turn and the one-legged stand. The other type of DUI is called per se, and it is were we get an alcohol limit of .08 BAC. For this type of DUI, if a person is in actual control of vehicle on the “ways of the state,” and has a BAC of .08 or over, he or she is DUI regardless of the actual level of impairment.
Approximately 15 states have implemented a per se DUI that involves not just alcohol, but THC. Our own legislature began the process of considering such a bill today called HB 168.
Our lobbyist Pat Pardis was there to present testimony both as an advocate and a physician. Rose Habib also presented critical testimony on the failure of this bill to actually meet any scientific standards.
The are several significant problems with this type of approach to DUI, and both Pat and Rose did a great job of laying out the case. First, this bill does not distinguish between the active Delta 9 THC and the metabolized THC-COOH. Accordingly, anyone who consumes cannabis even once would arguably be DUI for weeks afterwards. Second, the arbitrary limit of 5 ng/ml is just that: arbitrary. Even the federal government’s own scientists say the line does not go to impairment. Some people are impaired well below 5 ng/ml, others would not be impaired until it is much higher. Finally, there is no statistical evidence that per se laws actually make the roads safer in any state where they exist.
House Judiciary Committee chairman Kreyton Kerns indicated he was troubled by implementing such a bill without a solid foundation in science, and that is good news. Ellie Hill pointed out these were the same issues the legislature was troubled by last session, and the bill died last session on that basis. We do not know yet when the committee will take a vote on the bill.