The Opinion of the RGJ Editorial Board

Nevada’s marijuana DUI limit for drivers can put users in violation of the law even if they are not impaired.

No one wants impaired drivers on Nevada’s roads – whether from alcohol, prescription drugs, marijuana, cold medicine, texting or anything else that decreases driving abilities – but when a law gives a false impression of impairment, it needs to go.

The Nevada Legislature has not addressed the issue. While it is too late to introduce a new bill, there are other legislative methods that can be employed this session to address a faulty law that has the potential to affect thousands of Nevadans.

Here are the main facts to understand:

• With alcohol, there are standardized, proven tests using breath, blood or urine to verify impairment. No real-time, accurate test exists to measure impairment from marijuana.

• Nevada has set a limit of 2 nanograms of marijuana per milliliter of blood. This indicates previous usage, not impairment. Two nanograms is the lowest among the states that have legalized recreational marijuana; it’s one of the lowest limits in the nation.

• No scientific evidence backs up how much marijuana in a person’s system constitutes impairment, according to the AAA Foundation for Traffic Safety, a nonprofit focused on traffic safety research and education. This is because marijuana is fat soluble, meaning that how long marijuana lingers in a body depends on each individual’s body composition. Usage from days or weeks earlier can manifest as 2 nanograms or higher, even though the person may be perfectly sober.

“I don’t understand the point of having a limit if that doesn’t tell you what you need to know,” Ryan Vandrey told RGJ marijuana reporter Jenny Kane. He is associate professor of behavioral pharmacology research at Johns Hopkins University Medical School in Baltimore.

Vandrey distills the argument against Nevada’s marijuana limit simply: “If you are going to punish people for not being under the influence of a drug that you just legalized, that’s not fair.”

Nevada should consider doing what California, Oregon, Massachusetts, Maine, Alaska and Washington, D.C. do. These locations with legalized recreational marijuana all have no set limit for marijuana impairment.

That doesn’t mean people can drive stoned; rather, it means impairment must be demonstrated by behavior, not by a flawed lab test. This system has its own flaws because it is open to officer interpretation, which can be affected by factors not related to an individual’s actual impairment, but it seems a better policy than an arbitrary numerical limit with no basis in fact.

On the flipside, even the ability to drive well gives no indication of sobriety.

Nevada’s current traffic safety resource prosecutor, Chris Halsor, told Kane: “You have people that are just baked … and yet they ace the driving test. You have others who are totally sober and they flunk that blood test.”

For Nevada’s law enforcement, relying on the limit to determine impairment can throw twists into the justice process. The presence of marijuana in the blood can drop dramatically in minutes, and the time between arrest and a blood test can be one to two hours. Someone who was in violation may no longer be when a test is finally conducted.

Because of this, Dan Thom recommends Nevada get rid of its set limit. He is a sergeant with the Idaho Falls County Sheriff’s Office and a certified drug recognition expert.

Thom told Kane that officers would be more efficient in their jobs if they focus instead on defendants’ behavior and statements. That is what the states with no marijuana DUI limit currently do.

In essence, Nevada law says you can partake of marijuana as long as you never drive. That undermines the will of the people who voted in favor of recreational pot in November by making its appropriate use seem legally risky.

Right now, Nevada bases its marijuana DUI law on a theory with no basis in science. Until a legitimate test gets developed, no limit is the most reasonable position. Blood tests can still be ordered to help law enforcement and prosecutors verify marijuana usage, but the presence of marijuana should not be used to indicate impairment – because it does not.

The Nevada Legislature should address the marijuana limit before it adjourns. Waiting two more years for the next session is too long to take action on a serious statutory problem facing Nevadans now.