Wednesday, October 28, 2020 -
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Alcohol and marijuana: the double standard

Advocates of recreational marijuana are fond of saying that if alcohol is legal, why not marijuana? And if alcohol is potentially dangerous, yet we allow it, then why not marijuana? The danger, of course, is driving while drunk, or driving while high. The fact is, however, that the two are not the same. Not in law and not in fact.

Those who drive while drunk are subject to a major penalty. This is not necessarily so for one who drives while high. The only absolute equivalence between the two is that both can kill and both have killed. Drunk drivers have killed people in Colorado. Since Colorado legalized recreational marijuana, “high drivers” have killed people. This is where the similarity ends.

A drunk driver is “legally” drunk. This may sound like a tautology, but contained in that one word legally is a major stringency not applicable to one who drives under the influence of marijuana. A driver determined to be legally drunk by an objective measure is automatically subject to the heavy penalty of the law: a DUI citation. It makes no difference whether the individual offender can “hold his liquor” and, in fact, may not be impaired, or whether he is actually impaired. He is “legally” — that is, objectively —drunk. Whereupon, the DUI citation. However, a driver determined to be legally high by an objective measure is not automatically subject to any legal penalty. The violation of the objective legal measure of 5 ng/mL does not in and of itself result in a DUI conviction. It can take more than the failure of the marijuana sobriety test to determine that the offending driver is, in fact, impaired.

This is the double standard: A person’s subjective, individual capacity to handle liquor is dismissed under law. If his blood alcohol measure passes the limit, he is defined as impaired. Period. But a person’s subjective, individual capacity to handle marijuana is potentially — and often actually — dismissed under the law, which says: maybe he is impaired, maybe he is not.

One who fails an alcohol sobriety test is “legally” drunk. One who fails a marijuana sobriety test may, or may not, be deemed legally high. These are the reasons:

• Actual impairment is harder to measure for one driving under the influence of marijuana than for one driving under the influence of alcohol.

• Actual impairment from marijuana can vary depending on whether one smoked it or ate it.

• Regular marijuana users can remain impaired for weeks, even after they last used it.

Thus, the legal question for one who drives after having used marijuana becomes this: Since there is no sobriety test that can objectively take into account all of these factors, should the law for a DUI conviction for driving under the influence of marijuana be required to take into account all these factors in every case of one who is driving and high; or, should driving under the influence of marijuana be “legally” —definitively —defined, the same as for driving under the influence of alcohol?

No doubt, some advocates for  legalization of recreational marijuana use will argue for the flexible definition. It is only fair, they will say. We say: Tell that to the families of the dead victims of the drivers who were high. The flexible definition presumes that the use of recreational marijuana is a fundamental civil right whose suspension, repeal or objective legal definition would somehow undermine the constitution and common sense.

Is it too much to ask of those who use marijuana recreationally that they never drive while high, whatever their individual tolerance for marijuana might be? We don’t think so.

The legalization of recreational marijuana was done without knowledge of all of its ramifications. Because voters were assured that the legalization of marijuana was, in fact, a mere extension of the same right to weed as citizens already had  to alcohol, then the two substances should, in fact, be treated the same in law. Given the proven danger to human life that driving under the influence of marijuana usually poses, it should be defined with the same objectivity as driving under the influence of alcohol, the differences in the sobriety tests for the two substances notwithstanding. Voters did not knowingly vote to legalize recreational marijuana with full, or even partial, knowledge of its implications for driving under the influence. It’s a bit cheeky to get the law passed, then come in after the fact and ask for every legal flexibility for those who drive while high, given that the legalization of recreational marijuana did not even raise, let alone settle, its DUIramifications.

Either we have a single standard for a DUI, whether the “i” connotes alcohol or marijuana, or we have a double standard.

We opt for the single standard.

Or, is recreational marijuana use to be deemed so important that safety on the roads is compromised?

Lest this sound far-fetched, consider that police regularly spot people lighting up, then getting right into the driver’s seat. The law is flouted. A single standard under law for all DUIs — alcohol and marijuana — would serve as a deterrent to this behavior, which may not always be dangerous, but usually is.

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