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Nevada Says Bye Bye to the "Per Se" Marijuana DUI

Posted by Charles Goodwin | Jul 19, 2021 | 0 Comments

Starting July 1st, 2021 Marijuana DUIs are no longer "per se" violations in Nevada

One of the most welcome changes coming out of the recent legislative session was AB 400. AB 400 repealed the sections of NRS 484C.110 - Nevada's law defining DUI - that placed limits on how much marijuana could be in your system when operating a vehicle. Prior to July 1st, having 2ng/ml of delta-9-tetrahydrocannabinol (the psychoactive element of marijuana, also called THC) while driving earned you a DUI. Nevada now joins 35 other states that require proof of impairment and not just a blood test to convict for a marijuana DUI. The change is welcome. 

The Meaning of Per Se

"Per se" is a Latin term that roughly translates to, "by itself" or "intrinsically." When used in the law, it generally removes the need for the prosecutor to prove an element of a crime. Simply crossing a certain threshold automatically implies that the law is broken and you are guilty. The best example is speeding laws. States set the speed limits for the road, and if you are over that limit you are automatically guilty of speeding. But were you really speeding? Anybody who has driven from Las Vegas to California would argue that going over the speed limit is not, in fact, speeding and that they were driving at a safe speed. The law does not care if you were driving safely, or keeping up with traffic. If you are over the limit you are automatically guilty.

DUI laws are the same. For example, in Nevada, if you are over a .08 Blood Alcohol Content you are automatically deemed impaired and guilty of a DUI. It does not matter if you were driving safely and did not break any rules of the road. If you are above a .08 Blood Alcohol Content, you are guilty of DUI. 

The Meaning of Impairment Theory

Impairment theory is the holistic approach to convicting a DUI. It requires prosecutors to not only establish that there was a controlled substance in the blood of the person driving, but also that the controlled substance actually caused impairment. Prior to AB 400, this was mostly used when a blood test was taken late, or when somebody had a prescription that wasn't one of the listed substances in NRS 484C.110(3). During any DUI stop, officers are constantly detailing all aspects of a driver's behavior to measure impairment. In fact, one of their favorite tactics is to hit an individual with lots of questions while they have instructed them to get their insurance and registration. They are attempting to see how well the individual can multi-task. This is also the purpose of the Standardized Field Sobriety Test that is administered. Officers will often be documenting every detail they feel lends itself to impairment. 

Per Se vs. Impairment Theory: What Changed

NRS 484C.110 defines what a DUI is in Nevada. Prior to July 1st, There were four sections. For our purposes, we're going to focus on only two sections: NRS 484C.110(4) and NRS 484C.110(2). Section 4 was Nevada's "per se" marijuana law. It stated:

It is unlawful for any person to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access with an amount of any of the following prohibited substances in his or her blood that is equal to or greater than:
                                                                                                                                             Blood
                                                                                                                                    Nanograms
      Prohibited substance                                                                                        per milliliter
 
      (a) Marijuana (delta-9-tetrahydrocannabinol)                                                               2
      (b) Marijuana metabolite (11-OH-tetrahydrocannabinol)                                            5

What this means is if an individual was over 2 nanograms/milliliter (ng/ml) of THC (delta-9-tetrahydrocannabinol) or over 5 ng/ml of marijuana metabolite (the marijuana that stays in your system and has no psychoactive element) then they were automatically guilty of a marijuana DUI in Las Vegas. NRS 484C.110(2) is the impairment theory section and states:

It is unlawful for any person who:
      (a) Is under the influence of a controlled substance;
      (b) Is under the combined influence of intoxicating liquor and a controlled substance; or
      (c) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders the person incapable of safely driving or exercising actual physical control of a vehicle,

Section 2 requires a prosecutor to not only prove that you were under the influence of a controlled substance, but also that you were incapable of safely driving the vehicle while under the influence. AB 400 passing has now removed section 4. Prosecutors can only convict for a marijuana DUI if they can actually prove that you were not only driving the vehicle unsafely but were also driving it unsafely because you were under the influence. Practically speaking, if you are under the influence of marijuana and you are driving unsafely, it is likely you will be convicted. But for marijuana, this can prove to be difficult.

The Injustice of Nevada's "per se" limits

On January 1st, 2021 ingesting marijuana recreationally became legal in Nevada. Since that time, DUI Lawyers in Las Vegas and Nevada have been frustrated with the "per se" law for marijuana in Nevada. There are two reasons for this:

  1. The blood levels were so low that it was grabbing individuals who were not impaired; and,
  2. There is no scientific evidence that links the "per se" limits with impairment.
No Impairment? No Problem!

Prior to July 1st, 2021 almost everybody who smoked marijuana recreationally within a day of driving was at risk of getting a marijuana DUI in Las Vegas. This is because of how low a threshold 2 ng/ml for THC and 5 ng/ml for metabolite was. For context, when you have just smoked marijuana and you are really feeling "high," you are probably hovering at about 150 - 200 ng/ml of marijuana. Compare that with the 2 ng/ml that is required to convict of a marijuana DUI. Nobody is high at 2 ng/ml. They were still guilty of a Marijuana DUI. The Metabolite standard is more egregious. To place it in context, metabolite levels of roughly 100 ng/ml are indicators of marijuana use within the last seven days. Or, if you smoked marijuana on a Saturday and were pulled over on a Wednesday you could potentially be going to jail for a marijuana DUI. That is not justice.

Impairment and Marijuana levels: No Scientific Link

In July of 2017, the National Highway Traffic Safety Administration (NHTSA for short) prepared a report to Congress concerning marijuana-impaired driving. NHTSA is famous for developing the Field Sobriety Tests that are used nationally and generally advocating for stricter DUI laws across the nation. So when they published their report, it was quite a surprise to see them declaring there was no link between THC levels and impairment. In one study they linked, NHTSA stated:

Currently, there is no impairment standard for drivers under the influence of marijuana. Many of the
reasons for this are discussed elsewhere in this report. They include the fact that there is no chemical
test for marijuana impairment, like a BAC or BrAC test for alcohol that quantifies the amount of alcohol
in their body, indicates the degree of impairment, and the risk of crash involvement that results from the
use of alcohol. The psychoactive ingredient in marijuana, delta-9-tetrahydrocannabinal (THC), does not
correlate well with impairment. While very high levels of THC do indicate recent consumption (by
smoking marijuana) it is very unlikely a police officer would encounter a suspect and obtain a sample of
blood or oral fluid within a short enough time for high THC levels to be detected. As was mentioned
earlier, impairment is observed for two to three hours after smoking; whereas by an hour after smoking
peak THC levels have declined 80% - 90%.

NHTSA itself could find no link between the THC levels and increased crash risk. Additionally, as this CNN video shows, marijuana affects those who smoke it differently. Daily users can drive at much higher thresholds than those who never smoke. This was also noted by NHTSA, who stated that while there are several indicators that somebody is high, there is no way to gauge how much THC an individual has in their system. Further, NHTSA could find no link between the THC levels and increased crash risk, stating:

When the odds ratios were adjusted for demographic variable of age, gender, and race/ethnicity the
significant increased risk of crash involvement associated with THC disappeared. The adjusted odds
ratio for THC positive drivers was 1.05 (95% Confidence Limit of 0.86 – 1.27). This adjusted odds ratio
was not statistically significant.
A final adjustment was made for the presence of alcohol. When both demographic variables and the
presence of alcohol were taken into account, the odds ratio for THC declined further to 1.00
(95% Confidence Limit of 0.83 – 1.22). This means there was no increased risk of crash involvement
found over alcohol or drug free drivers. 

With all of this science, the question remains: What was the link between 2 ng/ml and 5 ng/ml and impairment? The answer is there is no link. The law on the books was more discriminating against those who smoked marijuana than it was safeguarding the public.

So Long, "Per Se" Convictions. You Won't Be Missed

The repeal of section 4 of NRS 484C.110 was a long time coming. It wasn't based on science. It was grabbing people who were no longer impaired. It targeted individuals who smoked marijuana recreationally. The passage of AB 400 has now paved the way for a more fair and just method for convicting of Marijuana DUI. It is a welcome change.

Sources:

About the Author

Charles Goodwin

Managing Partner at Goodwin Law Group, PLLC Criminal Defense and DUI Defense lawyer Charles Goodwin is dedicated to his clients because he understands what they are going through. Charles got into trouble when he was 18 years old and was sent to the Nevada Department of Corrections Boot Camp o...

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