Some Hawaii lawmakers want to ensure that driving under the influence of marijuana remains illegal while also expanding the definition of drugged driving.

House Bill 2399 was introduced at the behest of Gov. David Ige months after Hawaii dispensaries began selling medical cannabis. The bill notes that recent attempts have been made at state and federal levels to remove marijuana from lists of regulated drugs. Right now it is considered a Schedule I drug alongside meth, heroin and the painkiller fentanyl.

Currently state law only prohibits driving under the influence of substances on schedules of drugs. State and federal authorities rank those drugs from 1 to 5 depending on their medical value and potential for health hazards such as abuse, with 1 being most hazardous.

HB 2399 would also increase the number of drugs that could legally cause impaired driving to include the popular tea drink kava and muscle relaxants.

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Most testifiers supported the bill.

But some people worry about patients who legally and safely use medicines that can cause impairment.

Testing drivers for drug impairment isn’t as easy or certain as testing for alcohol impairment. Hair follicle drug tests, for example, show traces of drug use for as long as that hair has been in your head — long past the period of impairment.

“We are concerned that a simple traffic lane violation would be treated as an impairment issue for substances like kava … without appropriate scientific confirmation or verification as to what amount or concentration of the substance would or could cause impairment,” wrote the state Office of the Public Defender in testimony.

The version of the bill approved by the House would broaden the definition of drugged driving to include any substance that causes impairment. A narrower draft was approved by the Senate, so the differences will have to be addressed in conference committee.

Caffeine and nicotine are exempted in the Senate draft.

Keeping Up With Emerging Drugs

The bill was supported by the state Department of Transportation, and most county police departments and prosecuting attorney offices.

“Even adding new drugs to the schedule is not sufficient because changing just one molecule in the substance changes its chemical makeup, thus making it an entirely new drug that is now excluded from the schedule,” the DOT wrote in testimony.

The DOT added that it trains and certifies officers to recognize impaired drivers through its Drug Recognition Expert program. Seventy officers statewide have been DRE certified, according to the department.

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Jolon Wagner, a Honolulu Police Department officer testifying as an individual, wrote that he has stopped dangerous drivers who he later found consumed kava.

Also among those who submitted written testimony in support was Clifford Wong of Clinical Labs of Hawaii, a private lab that conducts toxicology analyses of blood and urine samples submitted for DUI testing. Wong also serves on the State Impaired Driving Task Force.

Clinical Labs of Hawaii has detected drugs postmortem that weren’t scheduled but would have been listed as the primary intoxicant in an arrest, he wrote. Wong named over-the-counter antihistamines and cough suppressants, a muscle relaxant, kava and Kratom, a stimulant made from a tree indigenous to Southeast Asia.

The Drug Policy Forum of Hawaii supports the prohibition of certain specific substances in the drugged driving statute but opposed the language put forth in the House version of the bill, said Carl Bergquist, head of the agency.

He noted that the state Department of Public Safety Narcotics Enforcement Division administrator already has the power to schedule new drugs that may appear in Hawaii.

Bergquist told Civil Beat said he was pleased to see that the Senate narrowed the definition of “drug,” but didn’t feel there was a clear need for the bill. Drowsy or distracted driving seems to be a bigger issue, he said.

“If there’s a specific substance they feel is causing this problem, they should name it in the bill,” Bergquist said.

Four states set blood concentration limits for THC, the psychoactive chemical in marijuana, and three states set blood limits for any illegal drug, according to the National Conference of State Legislatures. There’s still no widely accept amount of THC in the breath or blood that indicates who is impaired, National Public Radio reported.

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