There are plenty of laws and regulations on the books related to how police are allowed to examine drivers for possibly being drunk, but the same cannot be said when it comes to checking on drivers for possibly being high on marijuana.
“We’re having a discussion to try and figure out what tools are available that might aid police,” said Virginia Sen. Scott Surovell.
It has become a popular topic for local lawmakers, especially since recreational marijuana has now been legalized in D.C. and Virginia.
Voters in Maryland said yes to legalizing it, starting in July 2023.
“Driving under the influence of marijuana is very difficult to detect,” said Surovell, a Democrat. “We’re going have to continue studying these things and looking at them carefully to ascertain whether any of them comport with our notions of due process.”
Lawmakers have talked about the possibility of implementing roadside saliva tests to detect marijuana, but a number of legal pitfalls may go along with something like that.
For example, while saliva tests can detect whether someone has consumed marijuana over the past 12 hours, that doesn’t necessarily mean that the person was intoxicated at the time of the test: If someone smoked marijuana 12 hours before being tested, the effects of the drug would have worn off by then.
“You can detect marijuana in somebody’s body well after they’re finished consuming and are no longer under the influence,” Surovell said. “These things present a whole different set of legal, constitutional and medical problems that we’re trying to muddle through.”
That’s why Surovell doesn’t think lawmakers will pass a bill just yet that would specifically call for roadside marijuana testing.
“What we intend to do is to pass some legislation to allow us to gather better data to find out exactly what’s going on in the street,” Surovell said. “We really don’t have any good data on how much marijuana impaired driving is going on.”
Anecdotally, it appears that driving high is a growing problem.
Surovell said that he’s seen research showing that “30% of Virginians believed it was OK to drive after having smoked marijuana.”
Additionally, DUI arrests have dropped dramatically across Virginia, leading some to speculate that young people are using marijuana more than alcohol these days.
“In 2011, there were 23,000 breath tests administered around the state,” Surovell said. “Last year, there were only 10,000.”
The Virginia General Assembly will convene for the 2023 legislative session Jan. 11.
