In May of 2020, the Commonwealth of Virginia decriminalized marijuana, reducing criminal penalties for possession of marijuana to civil offenses. This change in marijuana law comes just a few years after Virginia passed laws authorizing marijuana for medical use and establishing a licensing system for producers/processors in the Commonwealth. In early 2021, the Virginia legislature passed a bill to legalize marijuana. Specifically, the bill eliminates criminal penalties for simple possession, provides an expungement process for those with prior convictions, and establishes a structure for the manufacturing and sale of retail marijuana products. The bill aims to have retail marijuana sales begin in January of 2024. With the landscape of marijuana laws quickly changing in Virginia, it is prudent to evaluate the landscape of marijuana laws nationally and consider the effects of the changing legislature.

Increase of legal availability

Since Colorado and Washington legalized the recreational use of marijuana in 2012, more than a dozen states have followed suit. In addition to the 15 states (and the District of Columbia) that have legalized adult, recreational use of marijuana, more than 30 other states have some form of medical marijuana approval. As a result of these changes, marijuana is now more legally accessible than ever before.

Despite the changes in various states, it remains federally illegal to buy, sell, and possess marijuana. Additionally, it should be noted that traveling across state lines with marijuana or marijuana products can constitute a federal drug trafficking offense. Further, it is illegal for one to travel to a state with legal marijuana to make a purchase and then travel back across state lines with their purchase. It is paramount that anyone who regularly drives across state lines is aware that they may not do so with marijuana regardless of the legality of its sale.

Drivers under the influence

Studies have shown that the use of marijuana impairs judgment, motor coordination, and reaction time. As such, it is dangerous to operate heavy machinery or a motor vehicle while under the influence of marijuana. Despite this, almost half of marijuana users believe that it is safe to drive when under the influence of marijuana (https://www.theguardian.com/society/2019/apr/26/driving-while-high-cannabis-study-safety). Legally, operating a vehicle under the influence of marijuana creates the same risk for DUI/DWI prosecution. Despite the risks associated with drugged driving, the reported percentage of weekend or nighttime drivers with marijuana in their system rose for 9% in 2007 to 13% in 2015, according to the CDC. https://www.cdc.gov/mmwr/volumes/68/wr/mm6850a1.htm. After alcohol, marijuana is the drug most often found in the blood of drivers involved in collisions. This statistic, however, does not accurately reflect the number of drivers involved in accidents who were under the influence of marijuana at the time of the accident.

Being proactive

Drug tests, unlike breathalyzers or other alcohol-related assessments, do not provide an acute reading of when an individual consumed a drug. Drug tests can indicate that someone has consumed a drug within the last week or month, but not in the last hour or two hours. Creating a similar problem is the lack of an agreed upon or nationally recognized marijuana sobriety test. This creates an issue as, in the aftermath of a collision, it may be impossible to determine if one of the parties was impaired.

In order to combat this issue, apps such as the DRUID (DRiving Under the Influence of Drugs) app have been developed in order to test users’ impairment levels. The DRUID app, available on all smart devices, prompts a user to complete a series of touch screen-based tests while holding the device. The tests provide results in approximately three minutes and will indicate whether the user is experiencing an impairment of any kind. While this app cannot accurately determine if a user has used marijuana, it will detect if a user is currently impaired and suggest that the user refrain from operating heavy machinery.

Impairment testing apps such as DRUID can be utilized to not only determine someone’s impairment level in the aftermath of an accident, but also to determine if someone is fit for driving or the operation of heavy machinery. Random impairment spot checks, similar to random drug tests, could improve safety and prevent accidents. Preventing impaired drivers from taking the road could lead to a decrease in motor vehicle collisions, and ultimately save lives.

If you have any questions about this article, please contact Sean Mackin (smackin@setlifflaw.com) at 804-377-1272 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.