June 19, 2019
Illinois law-enforcement officials are “incredibly unprepared” for the potential upswing in impaired driving that could result from legalization of recreational use of marijuana.
That view of the impact of House Bill 1438 came from a Chicago-area police officer spearheading a pilot program to develop a roadside chemical test for marijuana.
Sgt. Brian Cluever, director of traffic safety at the Carol Stream Police Department, said technology to accurately check saliva for cannabis-related impairment and support driving-under-the-influence cases in courts is months and potentially years away in Illinois and other states.
And unlike alcohol, there’s no breath test for marijuana.
In addition, Cluever said it’s unclear how much it will cost and how long it will take to train more Illinois police officers on how to interview people and conduct field sobriety tests for marijuana. The field tests for pot are different from alcohol but still can be used to arrest and charge drivers with marijuana-related DUI.
Those various challenges will put police in a “tough spot,” Cluever said last week. “We won’t be ready by Jan. 1, 2020.”
His statements reflected many of the concerns raised by police, prosecutors and even the speaker of the Illinois House before and since passage of HB 1438 last month. The legislation would make Illinois the 11th state to legalize use, possession and sales of marijuana involving people 21 and older.
The work being done in Carol Stream to develop a non-invasive chemical test was described by supporters of the bill during debate in the General Assembly as a sign that technology is moving forward to identify and prosecute cannabis-related impaired driving.
But the saliva testing program that the Carol Stream Police Department began using in early 2018 for marijuana, cocaine, methamphetamines, opiates and other drugs has slowed because problems with the testing equipment prompted the department to change suppliers, Cluever said.
Testing with equipment from a new supplier began only this year, and the equipment isn’t sensitive enough detect the presence of tetrahydrocannabinol, or THC, down to the legal limit in Illinois – 10 nanograms per milliliter in saliva, he said. The equipment is sensitive only to 40 nanograms, he said.
Illinois’ legal limit for THC in blood for drivers is 5 nanograms/ml.
A trial of saliva-testing equipment in Michigan could detect THC no lower than 25 nanograms/ml. A February report on the Michigan pilot program said results were encouraging but that more study was needed.
“This is why I asked the legislature to slow down and get these public-safety components in place before the bill moved forward,” Sangamon County Sheriff Jack Campbell said. He testified in front of lawmakers on behalf of the Illinois Sheriffs’ Association.
Concerns raised by Campbell and others weren’t enough to stop progress of the legislation, which is expected to be signed into law by Democratic Gov. J.B. Pritzker so it can take effect Jan. 1.
Heather Steans, D-Chicago, chief sponsor of HB 1438 in the Senate, said impaired driving related to marijuana is taking place now, and law-enforcement groups probably will never support legalizing cannabis, so their request for more study wasn’t persuasive.
“I don’t think waiting is a compelling argument,” she said.
Legalizing adult use probably won’t lead to a “significant” increase in impaired driving, Steans said, so the wisest move would be to create a streamlined path for Illinois to implement the latest testing technology as it’s developed and, at the same time, fund more training for police.
The bill would create a “DUI Cannabis Task Force,” made up of lawmakers and representatives from the Illinois State Police, Secretary of State’s Office and advocates promoting civil rights and safe driving.
The task force would be required to make recommendations to the governor and General Assembly by July 1, 2020, on “best practices” in impaired-driving law enforcement and “emerging technology in roadside testing.”
Steans noted the bill calls for 8 percent of tax revenue generated by sales of recreational marijuana to be distributed to local law-enforcement agencies. Based on her estimates for sales, the 8 percent could total $4.5 million in fiscal 2020, $11 million in fiscal 2021 and up to $40 million a year once the state’s recreational pot market is fully developed.
Whether marijuana is making roads less safe in Illinois and the rest of the country is unknown. Also unknown are ways of measuring marijuana’s influence on impaired driving and fatal crashes, but officials in Illinois and other states say there are troubling signs that require more research.
House Speaker Michael Madigan, D-Chicago, didn’t vote when the House approved the legalization bill on a 66-47 vote. He issued a statement afterward that he has taken no stance on the issue.
“The lack of adequate field sobriety testing that our police need to identify and stop impaired drivers remains of concern,” Madigan’s statement said.
Jim Kaitschuk, executive director of the sheriffs’ association, said police are worried legalization will lead to more use of marijuana and more people driving after they smoke it or use marijuana-infused edibles. Without a chemical test or adequate police training, some impaired drivers could go unpunished and remain on the road, he said.
“We’re already depleted with resources on the street,” he said.
A 2017 report from the National Highway Traffic Safety Administration highlighted the challenges facing law enforcement.
The report said surveys show there was a 48 percent increase in the prevalence of drivers testing positive for THC at any level from 2007 to 2013-14, with 8.6 percent positive in 2017 and 12.6 percent positive in 2013-14.
At the same time, the report said the percentage of drivers testing positive for alcohol at any level declined from 12.4 percent in 2007 to 8.3 percent in 2013-14.
The report pointed out that the driving risks posed by alcohol use have been well known for decades, while “relatively little” is known about the risks posed by marijuana and other drugs.
There’s evidence that marijuana “impairs psychomotor skills, divided attention, lane tracking and cognitive function,” but “its role in contributing to the occurrence of crashes remains less clear,” the report said.
THC levels in blood are highest in people right after they finish smoking marijuana, and THC levels decline significantly in the next hour or two, the report said.
Experts say the THC decline can pose problems for police who want to take a blood test for THC but could face delays associated with bringing a driver to a hospital or summoning a phlebotomist for a blood draw.
There also could be delays in obtaining a search warrant for a blood test if the driver refuses to give consent.
The report pointed out more problems with police relying on THC levels. The few studies looking at the relationship between THC in the blood and level of impairment showed that peak impairment usually doesn’t occur at peak THC levels, the report said.
And impairment can vary by person at the same THC level, the report said.
The AAA Foundation for Traffic Safety analyzed the available studies and said specific THC threshold levels for legal impairment “cannot be scientifically supported” even though the foundation is concerned that marijuana may be contributing to fatal crashes.
AAA spokesman Nick Jarmusz said there’s a mistaken perception in the public that marijuana isn’t as dangerous as alcohol when it comes to driving.
In Colorado, the number of DUI citations by the Colorado State Patrol in which police listed marijuana or marijuana in combination with alcohol or something else as the impairing substance increased from 12 percent of all DUIs in 2014 to 15 percent in 2017.
Legal recreational use of cannabis in Colorado began in 2012, and legal sales began in 2014.
However, Colorado officials said the state’s increase in police trained in recognizing drug use could have played a role in the higher marijuana detection rates.
“Training is key,” said Sgt. Blake White, spokeswoman for the Colorado State Patrol.
Cluever, the Carol Stream police officer, said police who are trained as “drug recognition experts” or who have gone through “advanced roadside impairment drug-enforcement” training learn how to spot the telltale signs of marijuana impairment that are different from indicators of alcohol intoxication.
The clues for cannabis impairment can include body tremors, dilated pupils and fine-motor exaggerations, he said.
Having a reliable roadside chemical test, as well as a chemical test that’s admissible in court, would only help police and prosecutors secure convictions, Cluever said.
The lack of a roadside chemical test makes training for officers even more important, he said.
“These people are just as dangerous, sometimes more dangerous, than the alcohol-impaired driver,” he said.