Does One Size Fit All?: Reimagining Sobriety Testing for Marijuana Use and Traffic Safety

One of the biggest roadblocks to marijuana legalization in states where it is still criminalized and illegal to consume without a medical permit is how states will handle people driving under the influence of marijuana. The Governors Highway Safety Association, a non-profit organization located in Washington, D.C., reports that there are two basic methods that states tend to use when addressing drug-impaired driving: “zero tolerance” laws that make it illegal to drive with any measurable amount of specified drugs in the body and per se laws that make it illegal to drive with amounts of specified drugs in the body that exceed set limits.[1] Sixteen states have zero tolerance laws in effect for one or more drugs and five states have per se laws in effect for one or more drugs.[2]

            In Commonwealth v. Gerhardt, 81 N.E.3d 751 (Mass. 2017), the court discussed that THC is “known to have an impact on several functions of the brain that are relevant to driving ability, including the capacity to divide one’s attention and focus on several things at the same time, balance, and the speed of processing information. While not all researchers agree, a significant amount of research has shown that consumption of marijuana can impair the ability to drive.” It would be irresponsible to treat marijuana as a “harmless” drug and not consider the possible negative side effects on traffic safety, but it is equally as irresponsible to believe that marijuana could not be regulated the same way as alcohol. A study commissioned by AAA’s safety foundation said it is not possible to set a blood-test threshold for THC, which can reliably determine impairment.[3] However, PBS News Hour reports “There’s no science that shows drivers become impaired at a specific level of THC in the blood. A lot depends upon the individual. Drivers with relatively high levels of THC in their systems might not be impaired, especially if they are regular users, while others with relatively low levels may be unsafe behind the wheel.”[4]

            There are marked similarities in the way that impairment of alcohol and marijuana differ from person to person. The Texas A&M Health Science Center reports that alcohol is metabolized at vastly different rates from person to person depending on factors such as body size, metabolism, tolerance, dependence, and binge drinking.[5] Since these factors are already accounted for in sobriety tests for alcohol impairment, therefore, why is it unreasonable to think that a similar protocol could not be developed for marijuana? Of course, people of different sizes and levels of tolerance will display different levels of impairment based on their consumption, so maybe it’s time to make traffic safety laws not so “one-size-fits-all.”

[1] Drug Impaired Driving, GHSA (Last visited December 9, 2020)

[2] Id.

[3] Andrew Gross, Fatal Crashes Involving Drivers Who Test Positive for Marijuana Increase After State Legalizes Drug, AAA Newsroom (January 30, 2020) (Last visted December 9, 2020)

[4] State laws that regulate driving while using marijuana are flawed, says AAA, PBS News Hour, (May 10, 2016) (Last visited December 9, 2020)

[5] Dominic Hernandez, You Asked: Why Do People React Differently to Alcohol? Texas A&M Health Science Center, (February 28, 2018) (Last visited December 9, 2020)

Rx for THC

Marijuana has been cultivated and used by humans for thousands of years. Evidence suggesting its use more than 5,000 years ago in what is now Romania has been described extensively.[1] Burned cannabis seeds have been found in the graves of shamans in China and Siberia from 500 BC.[2] People across the earth have used cannabis to create textiles such as rope and fabric, and for its medicinal and psychoactive properties. It is a recent phenomenon that marijuana has been socially decried as a substance akin to drugs such as heroin, ecstasy, and methamphetamine.[3]

            In fact, marijuana is often prescribed to help people control pain, bring back their appetite as a result of chemotherapy or other treatments, treat insomnia, and lessen tremors for people suffering from Parkinson’s disease.[4] It is proven to be safer than other psychoactive substances, particularly opiates that are prescribed to people suffering from diseases such as cancer, epilepsy, or Parkinson’s.[5] Time and time again science has proven that the negative effects of marijuana are merely a result of the social conditioning carried out by governments across the world.  Every day people successfully use marijuana in a medical context to assist them in healing or managing their diseases or conditions.

            Social stigma continues to deprive sick people of medical marijuana. Currently in Minnesota, the conditions that qualify for prescribed marijuana include cancer, HIV/AIDS, terminal illness with a prognosis of less than one year, PTSD, and autism, to name a few.[6] Minnesota should expand the list of qualifying conditions based on the research that shows there are countless other conditions that should qualify persons for medical marijuana.  Other states are already moving in the right direction with respect to this topic. In Illinois, for example, the state legislature voted in 2019 to expand the list of qualifying conditions for medical marijuana to include anxiety, depression, irritable bowel syndrome, and anorexia nervosa.[7] Minnesota should follow suit because the evidence shows that these conditions are managed by marijuana either more effectively or equally as effectively when compared with traditional medicinal drugs.[8] The science shows that what we consider modern traditional medicine can be assisted or even replaced by old-school traditional medicine, marijuana.

[1] Mary Barna Bridgeman, PharmD, BCPS, BCGP and Daniel T. Abazia, PharmD, BCPS, CPE, Medicinal Cannabis: History, Pharmacology, And Implications for the Acute Care Setting, US National Library of Medicine National Institutes of Health (Last visited November 19th, 2020)

[1] Marijuana, (Last visited November 19, 2020)

[1] Drug Schedules, United States Drug Enforcement Administration (Last visited November 19, 2020)

[1] Peter Grinspoon, MD, Marijuana, Harvard Health Publishing Harvard Medical School (Last visited November 19, 2020)

[1] Id.

[1] Medical Cannabis Qualifying Conditions, Minnesota Department of Health (Last visited November 19, 2020)

[1] Illinois medical marijuana: New qualifying conditions added as program becomes permanent, ABC 7 Eyewitness News (Last visited November 19, 2020)

[1] Supra, fn 1.

Lessons from Prohibition: Legalize Marijuana Now

On October 30, 2020, our seminar had the pleasure of speaking with a representative of Smart Approaches to Marijuana Minnesota (SAM-MN),[1] Kim Bemis, who is also the founder of Gobi, a program that helps concerned parents of children who use drugs and alcohol. The talking points against legalization included the belief that no psychoactive substance is safe, there are projected increased healthcare costs with increased marijuana usage as a result of legalization, alleged connections between increased mental illness and physical and mental disability and marijuana usage, and concern with there being no option for cities or counties to opt out of having distribution centers in the current proposed bill in the Minnesota House for marijuana legalization of recreational adult-use.[2]

In response, classmates brought up ideas like protecting individual rights, the lack of medical evidence of negative effects of marijuana on the body, and positive outcomes in states that have legalized marijuana, which were met largely with silence or deflection. This experience was valuable in that hearing both sides of an argument is important to being informed and attempting to work together towards a common goal, but it was also concerning because it seems that the general opinion of those against marijuana legalization has not shifted from the effects of anti-marijuana propaganda of the 20th century, including films like “Reefer Madness”[1] and the War on Drugs, which disproportionately negatively impacts Black Americans as a result of over-policing and systematic racism,[2] a topic that was notably not addressed at all by Mr. Bemis. Part of Mr. Bemis’ argument against the legalization of marijuana was inspired by the American Prohibition (of alcohol), moreover, which I referenced in my last blog post and discussed how it was a massive failure, but somehow in groups against the legalization of marijuana is seen as a massive success.

Though there are some valid points on the other side, including concerns about driving while impaired, it seems that there is a disconnect in the facts between the proponents and opponents of the legalization of marijuana, especially considering that the arguments against marijuana could be applied to several currently legal substances, most notably alcohol, which is proven to have adverse health effects yet does not have the same movement for criminalization. In the end, I believe that the only way for both sides of the argument to reach a consensus is going be to conducting good research on the effects of marijuana and presenting arguments rooted in facts, not fear.

Lessons from Prohibition: Legalize Marijuana Now

On October 2, 2020, our law school class, “Marijuana and the Law,” had the pleasure of listening to a guest lecture by Kate Bischoff, a Minnesota employment attorney and consultant with a national reputation. During the class, we discussed potential pitfalls that employers encounter when grappling with issues of marijuana legalization and how employers may best protect themselves without infringing on their employees’ rights.

This discussion prompted a question: why are employers treating marijuana differently than alcohol (in marijuana-legal states) with respect to issues of employment? There is no widespread legislation that prevents employees of federal contractors from enjoying marijuana off the clock, yet alcohol affects the brain and body more severely than marijuana, and can certainly inhibit proper safety protocol in the workplace.[1]

All but eight states currently have some level of marijuana legalization.[2]  Because marijuana is still federally illegal, however, federal contractors are still under the authority of the Drug Free Workplace Act,[3] which mandates that employees may not use substances, including marijuana, even in legal states. This begs the question of what is taking so long to amend federal law to allow for the full legalization of marijuana and release employers and employees from restrictions imposed by a government that still believes in the “war on drugs”? In fact, it was not that long ago that federal law prohibited Americans from consuming alcohol – a drug more harmful to public health and safety,[4] yet marijuana remains illegal.

The failure of American Prohibition is a mistake that we should not repeat with marijuana. Reasons for why prohibitionists organized against the public consumption of alcohol included perceived morality, religion, and public health.[5] Despite their crusade, Americans neither stopped consuming alcohol nor did prohibition achieve any of its goals. Prohibition merely succeeded in higher crime rates and public frustration.

The same can be said for marijuana prohibition, proponents of which come from eerily similar perspectives, with echoes of Puritanical fright at the thought of Americans using drugs they’re already using echoing through the halls of legislatures nationwide. It is time for science and logic to be applied as to the decriminalization, legalization, and regulation of marijuana at the federal level, as it was for the ending of alcohol prohibition in the early 20th century.

[1] Joelle Klein, Which is Worse? Alcohol or Marijuana?, UC Health, (Last Visited October 19th, 2020)

[2] See DISA, Map of Marijuana Legality by State (Last visited October 19th, 2020)

[3] 41 USC § 8102

[4] Thayer, R. E., York, Williams, S., Karoly, H. C., Sabbineni, A., Ewing, S. F., Bryan, A. D., and Hutchison, K. E. (2017) Structural neuroimaging correlates of alcohol and cannabis use in adolescents and adults. Addiction, 112: 2144– 2154. doi: 10.1111/add.13923.

[5] Jack S. Blocker, Jr., PhD., Did Prohibition Really Work? Alcohol Prohibition as a Public Health Innovation, Am J Public Health. 2006 February; 96(2): 233–243.