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State may implement new DUI marijuana testing

Confronting the challenges of implementing an effective test for operating under the influence of marijuana, the Nevada Senate recently passed a bill that eliminated the use of urine tests but will mandate blood tests for those suspected of driving under the influence of marijuana. The measure is awaiting approval from Gov. Brian Sandoval and may take effect before recreational marijuana use becomes legal in the state on July 1. Because of possible flaws, this test may pose new issues for the criminal defense of alleged impaired drivers.

The bill's sponsor said that this new law is an improvement because urine testing is unreliable by not testing for THC, the psychoactive element that gets marijuana users high. Urine testing merely reveals earlier marijuana use but not whether the test subject is impaired.

However, the AAA recently issued a study finding that assessing marijuana impairment is more complicated than alcohol impairment. While the testing in this bill may be an improvement over earlier methods, it still contains flaws. The AAA found that it is not possible to set a blood-test threshold for THC because there is no research specifying the levels where motorists are impaired after ingesting THC.

The AAA also found that drivers with high levels of THC in their blood may not be impaired if they are heavy marijuana users. Likewise, infrequent users may be impaired if they have relatively low levels of THC in their blood.

The bill sets a very low threshold level of THC in a driver's blood before he or she is considered impaired. The bill's sponsor said that it is almost impossible to test positive on a blood test and not exceed the state's legal limit for impairment and criminal conviction. However, he also admitted that this law may need reviewing as better technology becomes available.

Marijuana users may need a lawyer to contest the flaws in testing and haphazard enforcement of Nevada's new recreational marijuana laws. A defense attorney can challenge inaccurate testing and fight laws that may be unconstitutional.

Source: Reno Gazette Journal, "Nevada's new DUI marijuana testing is improvement but still poses concerns," Ray Hagar, May 12, 2017

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