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Is Intoxication Lying in the Weed(s)?

Legal Marijuana Sign

This article was featured in Inside-Booster — News of Lincoln Park, Lake View, North Center & Lincoln Square, Vol. 115, No. 20. (May 15 - May 21, 2019).

Marijuana is legal to some extent in over 30 states and counting — some for medicinal purposes, some fully decriminalized.

What are the implications for driving (including getting a DUI for marijuana intoxication), operating machinery, and driving through states where this herbaceous substance is not legal?

Most importantly, how can you tell when you are intoxicated?

Legality of Marijuana in the U.S.

Some states have decriminalized marijuana use for all purposes, or have made it illegal only to the extent of a minor municipal violation.  Others allow medicinal use.  Many allow both. 

Meanwhile, the other states still hold marijuana to be illegal, for both recreational use and medicinal purposes.

To cast an even larger cloud (pun intended) over the room, the federal government still classifies marijuana as an illegal drug.

So it may be allowable to ingest marijuana in a state but not legal to operate a boat, motorcycle, or car while under its influence.  It may be legal to ingest it in a state like Colorado, but illegal to take it from Colorado to a state where it is illegal, even if it was legal in the state from which it came.  And if you drive with it into a state where it is illegal, it may get you in trouble in multiple ways.

Legal Intoxication Standards for Marijuana

If you think being stoned makes it hard to make sense of things, how about the fact that there is no uniformly accepted test for determining intoxication for marijuana use!

For example, in Illinois, it is illegal to drive while intoxicated, but it is very difficult without a contemporaneous medical test to even determine what level of pot use yields intoxication.  Nor is there a standard for how to test this.

Saliva tests are invasive and costly.

Breath tests are being developed and are not reliable.

There is no scientific consensus on what constitutes intoxication or impairment due to marijuana.

Making matters even foggier is that pot stays in your system in the fat cells for around 30 days, meaning you could test positive for marijuana and its active ingredient, THC, yet not be remotely impaired.

Workers’ compensation in Illinois makes things even more difficult. An employer can claim that an employee who was injured was intoxicated and thus is not entitled to workers' comp benefits. But the employer has to prove actual impairment at the time of the injury, meaning they would have to test the employee contemporaneously and have someone trained to testify about levels of intoxication.

Privacy Issues — Can Your Car Insurance Company Ask if You Use Marijuana?

Auto insurers already ask insureds to voluntarily exchange personal information in exchange for lower rates.  This comes in the form of personal tracking devices.

It is certainly conceivable that insurers will ask people to volunteer information about legal drug use when applying for a policy of insurance, such as:

  • Do you or a member of your household currently hold a valid medical marijuana card?
  • Do you currently use marijuana regularly (defined as daily? Weekly? Monthly?)?
  • Do you drive within (x # hours/days) after using marijuana?

Whether you live in a state where marijuana is legal could also be analyzed algorithmically to adjust auto insurance rates.

Where does data collection, ostensibly for public safety purposes, intersect with rights of privacy?

Drug "Use" Does Not Mean "Intoxication"

Responsible people can indulge in a few beers, glasses of wine, or sips of whiskey and drive later on that day without any legal or medical impairment. There are also plenty of people able to use marijuana or medical products mimicking its effects and benefits who can still drive without impairment.  Yet others cannot.

In short, the effect of marijuana and its companion substances can differ widely upon different people.

Questions for Legislators and Policymakers

  • How should the law handle this?
  • Should it matter whether you are a weed user for medical reasons (a cancer sufferer who needs to improve his or her appetite) or a stoner who just wants to embrace the hash pipe (feel free to reference the Weezer song or any other clever pot references you wish)?
  • Should there be a uniform (national) standard for intoxication for
    • Driving
    • Operating heavy machinery
    • Working
    • Caring for children
    • Operating a boat
    • Skiing
    • Bicycling

Legal Mindbenders

  • If you are skiing in Colorado, where marijuana is legal, what happens if you get stoned, go skiing, and run over another skier and injure them?
  • What if you go driving in Colorado after a few joints and hit another vehicle injuring the occupants?
  • Are you legally liable? Does the injured person have to prove only that you skied or drove negligently? 
  • Can they ask for punitive damages if they can demonstrate you were intoxicated? (And what is the standard for intoxication?)
  • Most serious for users, insurers, skiers, and drivers, will your auto or homeowner’s insurer cover you if you drive or ski while intoxicated?
  • Can we anticipate new clauses to insurance policies in some (or all?) states declining coverage for legal intoxication or impairment of drugs? What about illegal use?  Opiates?

One can see there is a giant baggie filled with more questions than answers.

Some food for thought.

Contact Chicago Personal Injury Lawyer Stephen Hoffman

If you've been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has nearly 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles personal injury and workers' compensation claims on a contingency fee basis, which means you don’t pay anything upfront and he only gets paid if you do. Don’t wait another day, contact Stephen now.

Categories: Auto Accidents, General

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