Dumbing down the jury pool

shame_sign001_16x9Forbes Magazine has joined the Denver Post, the Los Angeles Times and other rags that spread misinformation about drugged driving. Jacob Sullum’s Colorado’s Prosecutors Complain They Have To Prove DUID Defendants Were Actually Impaired was the most recent in his series of inept DUID reports published by Forbes.

Sullum, like many others, confuses the misdemeanors DUI and DUI per se. Although they may carry identical sentences, they are distinct charges. Proof of impairment has always been required for DUI. DUI per se requires only a magic number, .08 BAC in the case of alcohol. Per se laws cut two ways. If you’re over, you’re guilty, if you’re not, you’re not. It’s that simple. That’s why courts like per se laws. If you’re under, you could still be theoretically prosecuted for DUI, but that doesn’t happen. Especially in Colorado, where DUI is defined as being substantially incapable of safe driving. 

Colorado’s new DUID statute is different. Above 5 ng/ml THC in blood, a prosecutor still must prove impairment, but a jury might be swayed to convict a stoned driver by knowing the driver tested above the magic number of 5 ng/ml. Below 5 ng/ml, it is now virtually impossible to convict. When HB 1325 was passed in 2013, many prosecutors hoped that a 5 ng/ml permissible inference would make it easier to convict a minority of stoned drivers; less than half of Colorado’s stoned drivers test above 5 ng/ml. Unfortunately, in a state where some in the jury pool have a near-religious belief that driving stoned is a right and that it’s not dangerous, that hope is now proving to be a mere fantasy. Many of us know how religious and near-religious beliefs can trump science.

Sullum’s sarcastic and misleading headline is not surprising, considering his Forbes February publication, If Marijuana Causes Lots of Crashes, Why Are They So Hard To Count? In this piece, Sullum inaccurately reported that a NHTSA study claimed, “cannabis consumption was not associated with an increased probability of getting into an accident.” Note Sullum’s use of the word “accident”, which he and defense attorneys prefer to the word “crash,” since the former deflects culpability from the drunk or drugged driver. Sullum further chastised reporters who didn’t agree with his analysis of the NHTSA study, suggesting they hadn’t read the study like he had. This is curious, since the study still hasn’t been published. A Research Note summarizing the study has been published. Let’s assume that is what Sullum was referring to.

NHTSA reported that the study failed to find an association between marijuana use and crashes which is a far cry from finding that there is no association. This is not unusual with a study that was never designed to find such an association in the first place. True enough, the study had exquisite controls. But the basic study itself was not well-designed. As reported earlier, the study suffers from the following fatal flaws:

  1. This was a voluntary study. All drivers involved in crashes were not tested, only those who volunteered to be tested. So the most that can be claimed is that controls were not significantly different from drivers in crashes who volunteered to be tested. Think about that.
  2. The study cohort included both innocent victims as well as those culpable for the crash; this help dilutes and mask any effect of marijuana consumption.
  3. The study used a biological assay that could not distinguish between recent marijuana consumption, known to be risky, and past consumption, known to be non-risky. There is a useful reference for those who would like to know how long edibles (derivative of marijuana) stays in the system, which may add knowledge to the studies.
  4. The study was conducted in a locale that has been shown to have a lower level of drug impairment than the national average.

The study authors wrote in their Research Note, “While the findings of this case-control study were equivocal with regard to the crash risk associated with drug use by drivers, these results do not indicate that drug use by drivers is risk-free.”

Sullum seeks to bolster his credentials in reinterpreting the NHTSA study conclusions by citing a 2014 study published in an economics journal that is so bad that it gives the term “bad science” a bad name.

Forbes would do well to suspend its campaign to dumb down the jury pool in Colorado. As proven by the jury case cited by Sullum, we’re already there.

And by the way, reasons marijuana crashes are so hard to count include economics and inertia. Only one-half of the states have statutes that separate DUID from DUI, and most of those that have separate DUID and DUI citation numbers don’t have officers trained and systems established to record DUID separately from DUI. We hope that will change, but in today’s climate, good changes occur slowly and with much gnashing of teeth.


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