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The Desperate Lies of Josh Marquis Part IV: Where’s the Marijuana Breathalyzer?

josh marquis oregon marijuana

(image via oregonlive.com)

As the leading law enforcement voice for the anti-Measure 91 campaign to legalize marijuana in Oregon, Clatsop County District Attorney Josh Marquis is tasked with delivering half-truths, distortions, and manufactured scares to convince Oregonians to maintain the status quo of ticketing pot users, arresting pot dealers, and imprisoning pot growers.

In one of his recent Facebook posts, Marquis warns about the impending doom of Stoned Mayhem on the Freeways if Oregon passes Measure 91:

As a DA I see too much damage done by drugs and alcohol -particularly mixed with driving. In Clatsop County there are only 2 trained DRE (drug recognition experts) cops and no real test that scientifically shows impairment by pot (many commenters claim it makes them BETTER driver ?!?)

Yesterday in Part III, I showed you how Oregon, Colorado, and Washington roads are safer than the national average, despite being three states with legalization or contemplating legalization, three states always among the tops nationally for marijuana consumption.  Today I tackle Marquis’s lament that there is no “real test” for marijuana impairment.

Marquis complains that his county only has two officers trained as drug recognition experts (DREs) and no real breathalyzer-like test for measuring marijuana impairment.  Then in the same post he complains that state and local police will receive “nothing” in marijuana tax revenue, implying there will be no way to train police to recognize the new menace of stoned drivers.  But as I pointed out in Part I, the average county could reap $43,000 a year in marijuana tax revenue.  How much does the 2014 Oregon Drug Recognition Expert School cost per officer attending?

Marquis, like other district attorneys and, frankly, most anybody else, likes things that make his job easier.  Before the days of the 0.08 blood-alcohol content (BAC) limit for DUI, prosecutors like Marquis would have to submit evidence in court to prove that a driver was, in fact, too impaired to operate a motor vehicle safely.  That meant dash cam evidence, sobriety test evidence, officer testimony, alcohol on the breath, accident report, and so on.  But with the 0.08 BAC, Josh Marquis only needs a number >=0.08 on the lab report from the police submitting a driver’s breathalyzer result to secure a conviction.  That driver could have been obeying every law, operating his vehicle perfectly, and passing the “touch your nose and walk the line” test with flying colors, but his blood alone will earn a DUI.

Prosecutors nationwide are clamoring for something similar with marijuana.  In Washington and Colorado, they created a 5 nanograms of THC per milliliter of blood limit, what we call a 5ng THC limit.  No evidence of the driver’s impairment is necessary.  A driver could be sitting still in rush hour traffic, and then bumped into by another car, and the motionless driver could get a DUI conviction for having 5ng of THC in his blood, regardless of how unimpaired he may be.

The problem with marijuana is that the driver at 5ng may likely be unimpaired enough to drive a car.  With alcohol, there is a ton of science to show that just about everyone, aside from perhaps an obese alcoholic, is going to be demonstrably impaired at 0.08 BAC.  But marijuana ain’t alcohol; it doesn’t metabolize in an even fashion like alcohol does.  Marijuana can be detectable in one’s blood long after the impairing effects dissipate, even after a night’s sleep and driving sober to work in the morning.  Worse, this lingering THC in the blood is more likely for frequent users, like medical marijuana patients.

So shouldn’t we bust people who are using marijuana so frequently it is still in their blood?  No, because in addition to the lingering effect of THC, there is also a tolerance to its impairing effects developed by frequent users.  That means the newbie who smokes his first joint the day pot is legalized would probably be too high to drive at 5ng, but the sixteen-year medical marijuana patient probably wakes up at over 5ng and probably drives just fine at levels far above 5ng.

A reporter from Washington’s KIRO decided to test this himself.  He brought a medical user, a recreational user, and an occasional user of marijuana to a test track.  They all consumed marijuana and headed out to the track with a driving instructor in the car and a DRE cop watching from the sidelines.  Jeff, the occasional user, was still driving fine at over 20ng according to the instructor and DRE cop.  Dylan, the recreational user, was fine at over 25ng.  Addy, the medical marijuana patient, got up to 56ng before the cop said her driving was “borderline”.  (Addy could have gotten a DUI when she drove to the test, because she was already at 16ng.)

Legalization doesn’t invent cars and marijuana – if we were going to see Stoned Mayhem on the Freeways, with 11% of Oregonians using marijuana on a monthly basis, we’d have seen it by now.  Still, Measure 91 directs the Oregon Liquor Control Commission to study the science on marijuana impaired driving and make recommendations to the legislature if any changes need to be made.  Measure 91 also sends money to law enforcement that they can use to train more DRE cops.  Until science shows a reliable test that only snares pot-impaired drivers and not unimpaired drivers who happen to be pot smokers, Marquis is just asking for an easier way to discriminate against legal cannabis consumers.


About Author

Executive Director: Russ Belville has been active in Oregon marijuana reform since 2005, when he was elected second-in-command of the state affiliate, Oregon NORML. After four years with Oregon NORML, Russ was hired by National NORML in 2009, working as Outreach Coordinator and hosting the NORML Daily Audio Stash podcast until 2012. Since then, Russ launched the 420RADIO marijuana legalization network and is the host of The Russ Belville Show, a live daily marijuana news talk radio program. Russ is also a prolific writer, with over 300 articles posted online and in print in HIGH TIMES, Huffington Post, Alternet, The Weed Blog, Marijuana Politics, and more.


  1. Why does most everyone jump to the automatic, knee-jerk, and FALSE assumption that cannabis impairs drivers much the same as does alcohol? Why let uninformed opinions be the basis of new laws? It took me very little time to do a search, and find actual scientific studies which indicate just how incorrect such an assumption is. Examples follow.

    Studies Show Marijuana Consumption Not Associated With Dangerous Driving, May Lead to Safer Drivers
    Anyone who consumes cannabis on a regular basis knows that it doesn’t make you a dangerous driver. Many people find that it makes them a safer, more focused driver; one that’s more aware of their surroundings and the dangers associated with controlling tons of gasoline-filled metal. Not only has this been an anecdotal truth for as long as cars and cannabis have been paired, science has also been clear that consuming marijuana doesn’t make you a dangerous driver, and may make some people safer drivers. More research is needed, but it’s hard to deny that of the research we have, marijuana hasn’t been found to increase a person’s risk of an accident. To back this claim up, here’s a list of studies and research conducted on this very topic, some of which were funded by national governments in hopes of different results.

    Marijuana and Driving: A Review of the Scientific Evidence
    “Marijuana has a measurable yet relatively mild effect on psychomotor skills, yet it does not appear to play a significant role in vehicle crashes, particularly when compared to alcohol. Below is a summary of some of the existing data.”

    The incidence and role of drugs in fatally injured drivers
    “There was no indication that cannabis by itself was a cause of fatal crashes.”
    REFERENCE: Washington, DC: US Department of Transportation, National Highway Traffic Safety Administration,
    Report No. DOT HS 808 065, K. Terhune. 1992.

    Marijuana’s effects on actual driving performance
    “Evidence from the present and previous studies strongly suggests that alcohol encourages risky driving whereas THC encourages greater caution. .. Drivers under the influence of marijuana retain insight in their performance and will compensate when they can, for example, by slowing down or increasing effort. As a consequence, THC’s adverse effects on driving performance appear relatively small.”
    REFERENCE: University of Adelaide study, 1995

    Role of cannabis in motor vehicle crashes
    “There is no evidence that consumption of cannabis alone increases the risk of culpability for traffic crash fatalities or injuries for which hospitalization occurs, and may reduce those risks.. The more cautious behavior of subjects who have received marijuana decreases the impact of the drug on performance, whereas the opposite holds true for alcohol.”
    REFERENCE: Marijuana: On-Road and Driving-Simulator Studies; Epidemiologic Reviews 21: 222-232, A. Smiley. 1999.

    “Both simulation and road trials generally find that driving behaviour shortly after consumption of larger doses of cannabis results in (i) a more cautious driving style; (ii) increased variability in lane position (and headway); and (iii) longer decision times. Whereas these results indicate a ‘change’ from normal conditions, they do not necessarily reflect ‘impairment’ in terms of performance effectiveness since few studies report increased accident risk.”
    REFERENCE: UK Department of Environment, Transport and the Regions (Road Safety Division). 2000.

    Cannabis And Cannabinoids – Pharmacology, Toxicology And Therapy
    “At the present time, the evidence to suggest an involvement of cannabis in road crashes is scientifically unproven”.
    REFERENCE: G. Chesher and M. Longo. 2002.

    Cannabis: Our position for a Canadian Public Policy
    “Cannabis alone, particularly in low doses, has little effect on the skills involved in automobile driving. Cannabis leads to a more cautious style of driving. However it has a negative impact on decision time and trajectory. This in itself does not mean that drivers under the influence of cannabis represent a traffic safety risk”
    REFERENCE: Canadian Senate Special Committee on Illegal Drugs. 2002.

    “The evidence to suggest an involvement of cannabis in road crashes is scientifically unproven.”
    REFERENCE: Cannabis and Cannabinoids: Pharmacology, Toxicology, and Therapeutic Potential, 2002
    Cannabis and Cannabinoids: Pharmacology, Toxicology, and Therapeutic Potential, edited by Franjo Grotenhermen, MD and Ethan Russo, MD (Haworth Press 2002).

    The Prevalence of Drug Use in Drivers, and Characteristics of the Drug-Positive Group
    “There was a clear relationship between alcohol and culpability. In contrast, there was no significant increase in culpability for cannabinoids alone.”
    REFERENCE: Accident Analysis and Prevention 32(5): 613-622. Longo, MC; Hunter, CE; Lokan, RJ; White, JM; and White, MA. (2000a).

    The Effect Of Cannabis Compared With Alcohol On Driving
    “Although cognitive studies suggest that cannabis use may lead to unsafe driving, experimental studies have suggested that it can have the opposite effect.” U.S. National Library of Medicine, 2009

    Why Medical Marijuana Laws Reduce Traffic Deaths
    “No differences were found during the baseline driving segment (and the) collision avoidance scenarios,”
    REFERENCE: Research published in the Journal of Psychoactive Drugs, 2010

    Top 10 Reasons Marijuana Users Are Safer Drivers
    “20 years of study has concluded that marijuana smokers may actually have fewer accidents than other drivers.”

    Risk of severe driver injury by driving with psychoactive substances
    “The study found that those with a blood alcohol level of 0.12% were over 30 times more likely to get into a serious accident than someone who’s consumed any amount of cannabis. .. The least risky drug seemed to be cannabis and benzodiazepines and Z-drugs.”
    REFERENCE: Accident Analysis & Prevention; Volume 59, October 2013, Pages 346–356

    Cannabis: Summary Report
    “Cannabis alone, particularly in low doses, has little effect on the skills involved in automobile driving.”
    REFERENCE: Canadian Senate Special Committee on Illegal Drugs

    Acute cannabis consumption and motor vehicle collision risk
    “There is no evidence that consumption of cannabis alone increases the risk of culpability for traffic crash fatalities or injuries for which hospitalization occurs, and may reduce those risks.”
    REFERENCE: British Medical Journal, 1999; M. Bates and T. Blakely

    Marijuana-DUI Case Tossed by Arizona Supreme Court in Metabolite Ruling
    “Because the legislature intended to prevent impaired driving, we hold that the ‘metabolite’ reference in [the law] is limited to any of a proscribed substance’s metabolites that are capable of causing impairment . . . Drivers cannot be convicted of the . . . offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana.”

    “Stick all *that* in your pipe and smoke it!”

  2. Roadside testing should be about impairment, not THC in the blood. Maybe some sort of game or puzzle on an iPad could test reaction time, depth perception, etc but THC tests are meaningless. This sort of test would work for opiates and prescription meds too.

  3. Captain Obvious on

    They still are trying to apply alcohol poisoning logic to cannabis to pervert the truth and keep their cash cow.

  4. I think the most important aspect of this post is that if there were going to be mayhem, we would have already seen it by now. Far more people than admit it smoke or ingest marijuana. All of the fears would have already been realized and yet here we are…bored. lol

  5. Anslinger's Goon on

    Right, the issue isn’t just the ensnaring of Medical Cannabis users (false positives), but the false negatives ( those that are impaired but would get away without conviction). Invalid testing presents this problem. A good lawyer will get off from an otherwise open shut case of inebriated driving if the test apparatus is bogus. That’s why it’s important on both counts to implement a test that will accurately find the folks that are driving impaired.

    Legalization opens this market to a bright entrepreneur. Wow, is there $ to be made from the right test. We are about a few years from that. In the interim, the field test is the best option for road and traffic safety.

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