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July 25, 2021

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Nevada bill would require more than blood test to prove marijuana DUI

Vigil for Levi Echenique

Ricardo Torres-Cortez

A photo of 8-year-old Levi Echenique is displayed during a candlelight vigil at Paradise Park, 4775 McLeod Dr., Sunday, Sept. 9, 2018. Echenique was killed by a suspected impaired driver in a traffic accident on Aug. 31 at at Eastern and Harmon avenues.

A frequent recreational marijuana user is pulled over in Nevada by a law enforcement officer who suspects they’re driving impaired.

Blood is drawn and marijuana pops up in their system, even though they’re not under the influence of the drug. They haven’t consumed it in days — even weeks.

Under current state law, the blood test itself is enough to get the driver convicted of DUI.

Nevada Assembly Bill 400, presented Monday before the Committee on Judiciary, aims to change that.

“You’re not able to make any argument that you were not impaired due to a built-up tolerance or a history of heavy usage, even if for medical purposes,” said Committee Chair Assemblyman Steve Yeager, D-Las Vegas, who introduced the legislation. “Simply stated, if you were above those levels, you are going to be guilty of DUI.”

The legislation wouldn’t outlaw the use of blood tests in court, but it would require prosecutors to further prove impairment through other means, such as driving behavior and field sobriety tests, Yeager said.

“Nothing in this bill would prevent prosecutors from charging and securing convictions against drivers who are actually impaired by cannabis,” Yeager said.

A person whose blood contains 2 or more nanograms per milliliters of THC — or 5 or more nanograms per milliliter of cannabis metabolite — is considered impaired.

Impairment and levels of THC or cannabis metabolite are not always related, according to scientific studies cited during the meeting. That means that someone who is high could be cleared by the blood test, while someone who isn’t under the influence could go to jail.

“Low THC levels of a few nanograms per milliliter (ng/ml) in blood can result from relatively recent use… when some slight or even moderate impairment is likely to be present, or it can result from chronic use where no recent ingestion has occurred, and no impairment is present," according to a 2017 congressional study conducted by the National Highway Traffic Safety Administration, which was cited during the committee meeting.

The issue has been debated and scientifically studied for decades, and technology that can detect marijuana impairment doesn’t yet exist, testified Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, or NORML.

Other organizations, such as AAA, have come to the same conclusion.

“It is well established by the leading experts in this field that neither per se limits for THC or for its metabolites are consistent or appropriate predictors of driving impairment,” Armentano said.

“In fact, there is no legitimate scientific debate on this issue,” he said, noting that Nevada is one of only a half-dozen U.S. states that still uses the nanograms per milliliter standard.

AB 400 “would really hinder our DUI marijuana prosecutors,” said John Jones with the Nevada District Attorneys Association, adding that defense attorneys would have a “field day in court.”

Metro Detective Dwaine McCuistion has spent three years of his 15-year career with the department investigating fatal crashes. “If passed, it would not be fair to the other driving community that we share the roads with,” he said.

There are cases, McCuistion said, in which marijuana DUI suspects are unable to participate in field sobriety tests due to injuries.

The detective cited a 2018 case in which a suspect zoomed at 103 mph right before slamming into a car at Eastern and Harmon avenues, killing 8-year-old Levi Echenique, who was on the way to school.

The suspect, Aylin Alderette, was hospitalized with minor injuries and visual testing for impairment proved inconclusive, according to her arrest report, which stated that blood was taken. Clark County prosecutors later said she had nearly five times the legal limit of marijuana in her system. She was sentenced to 26 to 65 years in prison.

“What would I tell the family members at that point” if a case could not be based on blood tests?, McCuistion said. “‘I’m sorry that I can’t prosecute the person who killed your family member. I’m sorry that Nevada law prevents me from bringing you justice.’ I don’t think that’s fair.”

The public defenders’ offices in Clark and Washoe counties, as well as the American Civil Liberties Union of Nevada, were among supporters of the bill.

Opponents of the bill and lawmakers shared concerns about a provision that would do away with the blood-based testing guidelines for workers compensation claims. Yeager agreed to further discuss the bill with them to try to reach an agreement.

“My main concern with this bill is to make sure drivers aren’t being unfairly convicted of impaired driving when they’re not actually impaired,” he said.