Cannabis impairment redefined in Nevada

A victory for medical cannabis patients

In 2020, Nevada dispensaries sold nearly $700 million dollars worth of cannabis and derivative products. Before AB400 was signed into law last week, many who used those products also drove a motor vehicle within 48 hours of use and likely exceeded the per se blood level limit for Tetracanabidiol (THC), the psychoactive component in cannabis, when they did it.

The legal standard for judging driver impairment for alcohol is consistent and accurate, an enduring legal measuring stick used in every U.S. state. With a higher blood alcohol content comes an increased level of impairment, a near linear relationship, but intoxication is not as predictable based on a blood level limit for THC.

The Problem

People react differently to cannabis use. Numerous studies show that an infrequent user may experience pronounced effects when consuming small amounts of THC, but a daily medical cannabis user, for instance, may exhibit no reduction in psychomotor ability after use, yet they would likely be convicted of DUI if their blood were tested while driving. As of August 2020, there were 13,269 medical cannabis patients in Nevada. Assemblyman Steve Yeager, primary sponsor of AB400, presented the legislation to the Assembly Committee on Judiciary on March 29 of this year.

“What this means in practice is that you have little or no ability to defend yourself against DUI charges, if your blood test comes back with results above those numbers, your only real defense is that you were not the one driving or that the blood tested was not, in fact, your blood,” Yeager said. “You are not able to make any argument that you were not impaired due to a built up tolerance or history of heavy usage, even if for medical purposes. Simply stated, if you are above those levels, you are going to be guilty of a DUI.”

A Nevada motorist can get a DUI for prescription drugs, but there are no per se blood level limits for these substances at which a person is presumed to be intoxicated. A prosecutor must prove impairment without the use of a per se limit to establish guilt. Now that AB400 is law, prosecutors need to do the same thing for cannabis intoxication prosecutions.

“Law enforcement officers in this state are already trained to recognize the signs of impairment due to drug usage, illegal or otherwise,” Yeager said. “They do this by interacting with the driver and conducting field sobriety tests. And of course, there must have been something about the driving itself that led to a traffic stop. Nothing in this bill (AB400) in front of you would change those things.”

In 2017, Nevada lawmakers passed AB135, which made legal acknowledgement that the presence of THC metabolites in the blood merely indicates that a person has consumed cannabis recently and not actual impairment. THC metabolytes can remain in the blood up to 48 hours after use, depending on a person’s body fat percentage. The bill also mandated that only a blood test for THC or THC metabolites could be used in court, yet with the passage of AB135, Nevada remained one of a handful of states to retain the per se limit for THC. 

Paul Armentano is deputy director of the National Organization for the Reform of Marijuana Laws (NORML) and helped Assemblyman Yeager present the bill.  Armentano is a noted expert in the field of cannabis intoxication and cited numerous studies and reports from a wide range of entities from the American Automobile Association (no friend of cannabis legalization) to the National Highway Traffic Safety Administration that repeatedly, definitively show that there is no correlation between THC or THC metabolites in blood and intoxication. 

“This is not a matter of we need more study, or we haven’t done the studies,” Armentano said. “Again, if you look at this original NHTSA (National Highway Traffic Safety Administration) report, it’s dated 1993. These questions have been asked and have been answered for over four decades.”

Workers Compensation

AB400 does, however, retain a per se limit for THC when paying worker compensation claims. Under the provisions of AB400, a workers compensation claim cannot be paid if an injured worker has equal to or greater than 2 nanograms of THC per milliliter in their blood.

The list of “controlled or prohibited” substances regarding workers compensation claims mirrors those on the federal List of Controlled Substances, which includes drugs like heroin, lysergic acid diethylamide (LSD), cocaine, and others. But should the MORE Act, recently reintroduced in Congress become law, cannabis would be removed from the List of Controlled Substances, and that may ultimately affect the prohibited status of cannabis in Nevada worker compensation law.

Law enforcement agencies offered no opposition to the bill, and only Republicans voted against it. AB400 passed the Assembly on a party-line vote, 26 to 16. The legislation saw a tiny bit of bipartisan support in the Senate where it passed by a 15 to 6 margin. Nevada Governor Steve Sisolak signed the bill into law on June 2, 2021.

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