Drugged Driving: How the Legalization of Marijuana Has Impaired the Ability of the Louisiana DWI Law

Abstract

Marijuana is now legal in four states and the District of Columbia for recreational purposes and in 23 states and the District of Columbia for medicinal purposes. Effective August 1, 2016, Louisiana enacted drastic changes to its medical marijuana law, largely widening the scope of persons who will qualify for a medical marijuana prescription and beginning the process of establishing pharmaceutical requirements for the prescribed drug. Louisiana’s Driving While Intoxicated (DWI) law, Louisiana Revised Statutes § 14:98, which includes drugged driving, is effect-based, meaning it requires proof of impairment that was caused by a proscribed scheduled drug. Currently, proof of the presence of the inactive, non-impairing marijuana metabolite in a driver’s body is used as evidence of causation of marijuana impairment. Science simply does not support this presumption of causation as this metabolite can remain in the person’s body for over a month after ingestion and long after the effect of the marijuana has ceased. Additionally, most police officers are not specifically trained to detect drug impairment, as it manifests itself differently than alcohol impairment, and Standardized Field Sobriety Test (SFST) results should be challenged on the basis of relevancy. Other states have drafted zero-tolerance driving-under-the-influence (DUI) laws regarding drugged driving. Such laws require that the chemical test show the presence of the active, impairing marijuana metabolite in the driver’s blood. Case law has also carved out affirmative defenses protecting users of medical marijuana from the zero-tolerance laws. It is the author’s opinion that as marijuana becomes more prevalent in Louisiana, the effect-based law will become exposed as drastically ineffective. Therefore, this comment proposes an alternative law regarding driving under the influence of marijuana that is based on current specific scientific findings, also compensating for the lack of police officers’ ability to properly detect marijuana impairment.