7 Investigates: Drugged Driving

Everyone knows the limit when it comes to drunk driving: 0.08. But drugged driving is far harder to prove.

7NEWS got an inside look at how police are trying to stop those stoned behind the steering wheel and found out why their methods are under attack.

Six days after recreational marijuana became legal, police said Caleb Andersen slammed into the back of a school bus on Essex Avenue in Gloucester, with 36 middle schoolers on board.

All the kids were OK. But police said the 20-year-old “admitted to ‘smoking a blunt’ prior to the crash,” and had a “strong odor of marijuana.”

“He was uneasy. He was unsteady on his feet,” a prosecutor said of Andersen during a court hearing in January.

But proving he was high isn’t easy.

Police couldn’t give him a breathalyzer – that doesn’t exist for marijuana. And blood and urine tests can be misleading, because the chemical in pot that gets you high – THC – can stay in your system long after its effects have worn off.

“You can get a level of THC that’s in the body. It still doesn’t mean impairment,” said Don Decker, currently a part-time officer at the Nahant Police Department and the statewide coordinator for the DRE program in Massachusetts, referring to the difficulty of determining marijuana impairment based solely on the level of THC in the body.

“There really is no limit that says, ‘OK, you’re at this limit. You’re impaired,’” Decker said.

So before police could charge Andersen with operating under the influence of drugs, they needed a police officer trained as a drug recognition expert, or DRE, to get involved.

DRE officers try to prove a driver is high on pot through a series of physical and mental tests.

Decker, who was one of the first DRE officers to be trained in the state, detailed the process to 7NEWS.

“So we’ll look for what the pupil size is, how the pupils react to light. Does it do anything abnormal like get bigger even when the light’s in there?” Decker said. “I have them look at a pen or pen light or your finger, and we’ll have them follow it.”

He looks for things like abnormal eye movement, and tests the driver’s balance and sense of time.

“You go outside today. Turn your windshield wipers on. It’s rainy. They’re nice and smooth. But if it’s a hot, dry day, what happens to your windshield wipers when you turn them on? They skip. And that’s, in a very basic way, what the eyes will look like,” Decker said.

Decker trumpets the test’s accuracy. But many defense attorneys argue it’s more subjective than scientific.

“It’s junk science. We don’t recognize it as legitimate science,” said Harold Rush-Lloyd, the attorney who defended Andersen.

A DRE officer determined Andersen was high on pot when he hit the school bus. But Andersen’s attorney disputes that.

“The evidence that would indicate that he was impaired by marijuana is weak at best,” Rush-Lloyd said.

He said the two weeks of training for an officer to become a DRE is not enough, and that the test’s results are unreliable.

“You need to have some expert medical evidence to show that somebody is impaired by a specific drug, and the DRE protocol doesn’t provide that,” Rush-Lloyd said.

In Colorado, the first state to legalize marijuana, drugged driving cases involving marijuana jumped 20 percent last year.

That state set a legal limit on the amount of THC that can be in your blood when you’re driving. But Massachusetts hasn’t.

So while police in our state believe marijuana driving cases will spike, the question is: Can they prove it?

“We want those folks off the road,” Decker said.

Earlier this year, only 124 Massachusetts police officers had been trained in DRE techniques, a number Decker said is too low. He said his phone has been ringing off the hook with interest in the program since Massachusetts legalized recreational marijuana.

There is another glaring issue with the DRE test: Drivers can simply refuse to take it, without any consequences. Meanwhile, the Massachusetts Supreme Judicial Court will soon decide whether field sobriety tests can be used for marijuana impairment, as they are for alcohol.

Earlier this month, Andersen accepted an arrangement where his OUI drugs charge is tabled for now, provided he spends two years on probation. Rush-Lloyd maintains that there were big holes in Andersen’s DRE evaluation, and he was working to secure an expert to refute its findings. But he said Andersen wanted to accept responsibility and move on from the incident.

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