Updated on October 4, 2020.
Medical content reviewed by Dr. Joseph Rosado, MD, M.B.A, Chief Medical Officer
Oklahoma has begun using a marijuana breathalyzer to determine DUI status of drivers who may be high. How did we get here? On June 26, 2018 Oklahoma citizens voted 57% in favor of State Question 788. The legislation carried and medical cannabis became legalized in the State of Oklahoma, effective July 26, 2019. Just over one year later, more than 200,000 patients have become certified by the Oklahoma Medical Marijuana Authority, and over 6,000 businesses licenses have been granted for dispensaries. Most of these people drive.
Doctors Do Not Have to Be Specially Certified to Assist Patients with Medical Marijuana
In most States, physicians are required to complete training and pass an exam to recommend medical marijuana to patients. The training can include ethics, state legal requirements, and review of health conditions and symptoms that may benefit from therapeutic medical cannabis.
At the time of writing, medical marijuana doctors in Oklahoma do not have to possess a designated license to assist patients with certification for legalized medical cannabis. Oklahoma state law determines that it is the physician’s responsibility to assess the patient for need and make appropriate treatment recommendations.
Because the State of Oklahoma has not provided limitations in terms of qualifying health conditions, Oklahoma has been referred to as the “wild west of weed.” Getting a medical marijuana card in Oklahoma is convenient, as a result. Most physicians provide 30-minute video consultations and charge between $100 to $200 for the medical evaluation required for a medical cannabis card.
Addressing an Increase in Driving Under Impairment (DUI) Charges in Oklahoma
Oklahoma is not the only state to monitor changes in DWI instances annually after implementing legalized medical marijuana. This is one of the foremost concerns for States. As legislation pertaining to medical cannabis controls evolve, issues with impaired driving are also being addressed for public safety.
Public education is the first step for the State of Oklahoma. They have acknowledged that citizens are aware of impaired driving in alcohol-related cases, but there may be some misconceptions regarding impaired driving under the influence of medical marijuana in Oklahoma.
Medical marijuana patients who are new to therapeutic use, may not be able to gauge safe levels of consumption. The legal issue is measuring the amount of “safe” cannabis or providing guidelines for medical marijuana users, pertaining to impaired driving. Right now, self-determination of one’s ability to operate a vehicle safely is the responsibility of the patient.
The challenge for law enforcement is to measure the level of driver impairment at roadside stops. Breathalyzer technology has existed for alcohol intoxication since 1931. The “drunkometer” was developed by Rolla Neil Harger of the Indiana University School of Medicine. Breathalyzers are effective at accurately measuring blood alcohol levels.
To date however, there has been no available technology to test for cannabis levels, for roadside checks and law enforcement. The problem resulted in a field sobriety test to confirm or disavow impairment from medical or Adult Use cannabis. A blood test can confirm THC levels, but that required medical blood draw services in-office (not roadside).
The other challenge is that medical marijuana patients that therapeutically use cannabis daily for pain relief and other symptoms, will have a residual amount of THC in their systems. So, a test that confirms the presence of THC is not an effective measurement.
The technology to provide that accurate testing for impairment relating to THC levels has caught up, and Oklahoma is launching a new pilot program to accurately determine medical marijuana impairment roadside.
Oklahoma Participates in Pilot of Hound Labs Marijuana Breathalyzer
A company from California has pioneered an innovative new marijuana breathalyzer test that can register THC levels. While all medical cannabis patients in Oklahoma would have a nominal level of THC (the psychoactive component of medical marijuana), the device from Hound Labs in California would determine if the individual had consumed cannabis within the past 2-3 hours before driving.
What is also appealing to state law enforcement, is that the prototype of the new breathalyzer equipment works to detect both alcohol and cannabis impairment. There would be no need to equip police and highway patrol offers with two separate systems and equipment.
Recreational marijuana is illegal in the State of Oklahoma. Medical cannabis cardholders are required to refrain from consumption if they plan to drive any vehicle. This legal requirement also extends to recreational vehicles like off-road (four-wheelers) and watercraft.
Detect whether THC has been consumed within two hours of testing
Provide an accurate report within four minutes
What has not been determined by State regulators is the legal limit of THC for the safe operation of a motor vehicle. At the time of writing, there are 18 states that have a zero-tolerance for THC levels and driver impairment measures.
9 states have zero tolerance for THC or a metabolite
3 states have zero tolerance for THC but no restriction on levels of metabolites
6 states have limits for tetrahydrocannabinol
Colorado has a reasonable interference law for THC levels
The technology gap to enable law enforcement to accurately measure impairment levels for medical marijuana patients is quickly closing. And for certified medical marijuana users in states that are not “zero tolerance” states, the recommendation is to wait at least 5 hours after consumption. However, that guideline may not apply to all users. The length of time that psychoactive ingredients stay in medical cannabis can vary by body weight, body fat content, and the delivery method (vaporized, smokable flower, tinctures, or edibles).
Legal Penalties for Driving While Impaired by Medical Marijuana in Oklahoma
First time Driving While Impaired, or under the influence of medical marijuana in Oklahoma is a misdemeanor charge. The individual may receive a 10 day to one-year sentence if the charge is heard by the district court. And up to six (6) months incarceration if the charge is heard in municipal court.
A resident of Oklahoma who is convicted of a DUI crime can have their driver’s license suspended by the Department of Public Safety (DPS). In Oklahoma, if you are charged with a second DUI (alcohol or marijuana), the charge is upgraded to a felony with a possible 1- to 5-year sentence. Oklahoma’s new marijuana breathalyzer test may end up putting a lot of people behind bars, even if they haven’t consumed cannabis in days. Do you think it needs more testing? Do think a cannabis breathalyzer should exist in the first place?