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If you get caught driving with a blood alcohol content of .08 percent, you’ve got a big problem. Under the law, you’re drunk. If you refuse to blow into the breathalyzer, your license is automatically suspended and you’ll be charged. You might be able to beat a DWI at trial, but you will pay a pretty penny.

If you smoke weed, the law is much murkier. It’s illegal to drive while your ability is impaired by drugs. But how do you know someone is “high?” You can do a blood test for THC, the psychoactive chemical in marijuana, but how much is too much?

The issue of marijuana impairment was front and center at a the vehicular manslaughter trial of John Ariano, accused of running a stop sign and killing Jack Blair. From my report on 13WHAM News:

Judge Frank Geraci, who presided over Ariano’s bench trial, found him not guilty of all charges. Geraci said there was not enough evidence the drugs in Ariano’s system caused him to be impaired and led to the crash. None of the deputies and other witnesses noted he was impaired. Ariano had been driving well under the speed limit and a driver who followed him for 7 miles didn’t notice any erratic driving.

“There was no impairment,” said Christopher Schiano, Ariano’s attorney. “It was not a popular verdict, but it was the right one.”

Schiano said his entire case was built around the fact New York State doesn’t have a threshold for how much marijuana a driver can have in his system. He said this was a rare vehicular manslaughter case because it didn’t involve any alcohol use.

Prosecutors alleged Ariano had 5.4 nanograms of THC in his blood. Colorado lawmakers recently defeated a bill that would have made 5 nanograms the driving threshold. The Denver Post reported:

At the earlier committee hearing, medical-marijuana activists argue that the proposed limit — 5 nanograms of THC per milliliter of blood — is too low and would result in near-certain convictions for sober drivers.

The bill’s opponents argued that medical-marijuana patients have no way of determining what 5 nanograms means. How much can they consume? How long do they have to wait afterward?

Supporters of the bill counter that the vast majority of people would be impaired at 5 nanograms and would need to wait only about two to three hours after using to fall below the limit. They argue that, even though some people could be sober at 5 nanograms, it is important to send a strong message.

Michigan prohibits any amount of marijuana in a driver’s blood.

While it’s widely accepted that alcohol impedes one’s ability to drive, the jury is out when it comes to marijuana. A Bloomberg columnist who is opposed to a marijuana threshold reports:

…when drivers are under the influence of THC; they tend to have heightened awareness — rather than diminished sensitivity as they do after drinking — to their surroundings. As a result, they tend to compensate by driving more cautiously.

A 2007 control study published in the Canadian Journal of Public Health reviewed 10 years of U.S. auto-fatality data. Investigators found that U.S. drivers with blood-alcohol levels of 0.05 percent — a level below the national 0.08 percent legal limit — were three times as likely to have been driving unsafely before a fatal crash, compared with individuals who tested positive for marijuana.

We will likely see more drugged driving cases. Rochester defense attorney Ed Fiandach said police are stepping up enforcement and getting more training. Much of the focus has been on drivers high on prescription drugs, but the Ariano trial shows marijuana users can also get nabbed.

It’s clear more research is needed on the impact of marijuana and other drugs on driving.

15 Responses to Driving While High

  1. I’m actually more confused now. If there was no impairment, why wasn’t he guilty? Shouldn’t he have had even less of an excuse for killing someone??

    I don’t think the law should be changed regarding marijuana in the blood. But maybe there need to be changes to the vehicular manslaughter law.

    • September 11, 2012 at 9:59 pm Rachel Barnhart responds:

      Lisa, without commenting specifically on the facts of this case, sometimes accidents are just accidents. We have all been in car accidents, some fender benders and others more serious. Vehicular manslaughter requires a criminal component beyond being a bad driver.

  2. He ran the sign, according to the information in this article, and hit someone. Does he have to be impaired for that to be a crime? Impairment should only be an additional charge. Just like hitting someone should be an additional charge to running the sign and killing someone, that’s a whole ‘nother charge too-

    • September 11, 2012 at 9:55 pm Rachel Barnhart responds:

      Vehicular manslaughter conviction requires impairment

      • Thanks for the reply! So it sounds like you can run a sign & hit & kill someone with no repurcussions as long as you’re not impaired -seriously? If so, that needs to be corrected. I’m not getting the sense of that at all-

        • September 11, 2012 at 10:14 pm Rachel Barnhart responds:

          There is always civil liability. And there are other charges besides vehicular manslaughter 2nd. Good question for a prosecutor.

          • The judge found him “not guilty of all charges” if I read correctly. Does this mean he can no longer be charged in this man’s death?

  3. The one thing that I never heard of, is whether the police can test for THC in your system at the point of violation. I know there are drug tests, but those only measure how much is in your system. Since marijuana stays in your system for 30 days, how can they say that the marijuana found in your system caused the violation at that particular time and date? Do they take a blood sample? Can you refuse the blood sample as a violation of the Fourth Amendment? Can someone be a habitual marijuana smoker with 5 nanograms in the blood for an extended period of time, but not be under the influence at the time of violation?

    As I learned from interning at the Monroe DAs office, field sobriety tests and police testimony are only heresay, but carry some weight. 95% of evidence against someone is the testing. There needs to be a clear-cut way for people to be busted while under the influence of marijuana. Much of what is currently used, creates doubt in my mind that law enforcement can effectively handle and prosecute a marijuana intoxicated individual. There are too many variables.

  4. September 11, 2012 at 7:29 pm Eduardo Ricardo responds:

    What about other medications (which he took)? Their legality? For some, THC is an anti-depressant. Although the topic needs to be discussed, I tried to address this issue…

    To no avail.

  5. September 11, 2012 at 7:40 pm Eduardo Ricardo responds:

    Or if you feel “the blues”, then I suppose it can be make you even more depressed(?). if thats the case, why use? Seems odd. Not for nothing, some people get high just to feel normal.

    But what’s normal?

  6. September 11, 2012 at 9:56 pm Jeffrey Rhodes responds:

    Ive had friend hauled in for blood testing in another state …
    But i was wondering about this in medicinal states … Im thinking it will most likley end up police will have swab tests (pricey now but as they make it cheaper) … So if you are positive then they can take you in and test the nanogram levels from there
    read more here http://www.buzzle.com/articles/mouth-swab-drug-test-facts.html

    Oh and thanx crimson vixen for keepin up interesting reporting via this blog … You rawk

  7. September 11, 2012 at 10:30 pm Eduardo Ricardo responds:

    Do we really need to complicate law enforcements job? Drugs, ALL drugs, lie.

  8. September 11, 2012 at 11:09 pm Eduardo Ricardo responds:

    That is if you want to refer to this as an accident. Was this an accident? Or was it driving while ability impaired, impaired judgment, misuse of medication, idk. Was it malicious? Who’s to blame? Shared blame? Is marijuana even illegal? Can you take testimony from a dead man?

    As crazy as it sounds, it’s happened before in a City courtroom.

    The reality and the law (I assume) says you cannot take testimony from a dead man/victim. But that was in the DA’s hands. Maybe it’s why those hands didn’t get nominated to the federal bench.

    Thank God.

  9. September 12, 2012 at 1:04 am Steve M. responds:


    If the defendant was charged in criminal court of Vehicular Manslaughter they most likely would have had their other traffic violations dealt with in a traffic court. So Not Guilty in this trial doesn’t mean he wasn’t necessarily found guilty of running the stop sign or whatever.

    Killing a person accidentally is not a crime. If the driver didn’t see the stop sign and failed to stop and this caused the accident, how should that be a crime beyond failure to obey the traffic control device? The outcome of the event is irrelevant here. It would be another story if the driver deliberately ran the stop sign with the intent to cause an accident, but proving that is next to impossible without admission by the defendant and what’s more, why would a person deliberately seek to injure themselves and put their own life at risk?

    As others have said – THC bonds to fat cells and depending on use remains in the system for weeks. In this case the defendant was also using Alprazolam (aka Xanax) as prescribed by a doctor.

    In my opinion the judge made the right call and the law is not in need of change, unless these tests can prove that a person is actually under the influence of the drug at the time they’re driving, otherwise, you’d be condemning a person who smoked a joint to a month off the road for no reason simply because it shows up in tox screens even if they’re perfectly sober.

  10. Just wanted to say, at the risk of sounding condescending, that I legitimately appreciate how level headed this discussion has been so far. Usually when marijuana is mentioned at all, things devolve quickly into sloganeering in support of the “war” on drugs.

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