If Oregon legalizes marijuana, how will it keep roads safe?
The scene of the crash on July 21, 2013. Police charged Samuel Martin Kitto, a 19-year-old Astoria man, with assault and driving under the influence after he fell asleep at the wheel and veered into oncoming traffic. Kitto’s blood tests came back positive for an inactive component of marijuana as well as scant levels of meth and ecstasy. Photo credit: Oregon State Police.
Dylan Rabell awoke to the sound of screeching tires.
Riding in the back seat of a friend’s Subaru Legacy, he watched in terror as a Toyota Corolla hurtled toward him and three friends. The Subaru, headed west on U.S. 26 about a dozen miles from the Oregon coast, had drifted into the oncoming lane.
Jacob Engbretson, the front-seat passenger, shouted at the driver.
The cars collided at 60 mph. The Subaru’s front end crumpled like an empty soda can, the hood bursting through the windshield and cutting a jagged gash across Engbretson’s left cheek, according to court records.
Rabell, with a broken rib, looked down at his girlfriend. She had been asleep, leaned over in his lap. Now her back was broken and she couldn’t move. The Corolla’s passenger, a woman returning from a hiking trip with her adult daughter, lay on the pavement groaning in pain.
Samuel Martin Kitto, the 19-year-old Subaru driver who’d fallen asleep at the wheel, also lay on the ground, a bone protruding from a mangled leg.
Prosecutors, convinced that Kitto caused the July 2013 crash while high on marijuana, charged him with assault and driving under the influence.
Winning a conviction would be another matter.
Kitto’s trial illustrates the extraordinary challenges authorities face in proving a driver was high on marijuana, a matter taking on new urgency as Oregonians prepare to vote Nov. 4 on legalizing recreational use of the drug. A key issue for many voters is whether legal pot would put more impaired drivers on Oregon roads — and if so, what authorities would do about it.
Everyone agrees that driving under the influence of any mind-altering substance is dangerous. But what’s the best way to keep roads safe without creating a law so broad it ensnares a lot of innocent drivers?
Oregon’s Ballot Measure 91, unlike laws in Colorado and Washington, sets no limit on the level of THC — pot’s active ingredient — in a driver’s blood. Supporters of the approach say tests are so imprecise they could lead to wrongful convictions. Opponents, though, fear Oregon’s proposal lacks the teeth needed to identify and punish drugged drivers.
“The question, then, is how do you determine if they’re under the influence?” said Josh Marquis, a leading critic of Ballot Measure 91 who is also the Clatsop County district attorney whose office prosecuted Kitto.
The answer, both sides agree, rests on a fragile combination of police observation and imperfect science.
Betting on blood tests
Voters in Washington and Colorado legalized marijuana in 2012, but sales started only this year. Authorities in both states said it’s too soon to determine any effect on road safety.
For enforcement, both states placed their bets on blood tests. Each established a 5-nanogram limit on active THC in a driver’s bloodstream. In theory, anyone found over that can be automatically charged with driving under the influence.
But experts say the tests aren’t that clear-cut. Scientifically, marijuana is far more cunning than alcohol, laying a maze of false trails to evade detection.
In the hours before the Clatsop County crash, Kitto and his friends drove together to an all-night rave in the woods and made plans to meet up at Kitto’s car in the morning, according to court testimony. A bleary-eyed Engbretson was the last to return that Sunday morning, July 21, 2013.
At some point, the four passed around a marijuana pipe and, sometime later, Rabell asked Kitto if he was OK to drive home to Astoria.
“He said, ‘Yes, I got it, man,'” Rabell testified.
Kitto, in his testimony, insisted he wasn’t high when he put the key in the ignition.
“That’s why we left,” he said. “Because I felt like I was not under the influence of anything.”
The crash occurred about 9:15 a.m. At a Portland hospital, police took two samples of Kitto’s blood and sent them to a private lab.
One of the tests showed scant levels of meth and ecstasy, which Kitto admitted he’d used three days earlier.
Tests also came back positive for 9-carboxy-THC, an inactive byproduct of marijuana. But two other molecules — the ones that create marijuana’s high — had vanished from his bloodstream.
“The THC parent drug, which is active, was not there,” Robert Hara, a forensic toxicologist who analyzed Kitto’s blood, testified during the trial. “The hydroxy metabolite, which is active, was not there. But the carboxy, which is inactive, was present in this person’s blood.”
In other words, the tests showed there was a good chance Kitto had smoked marijuana “within the last few hours,” Hara said. But, by themselves, they could not prove he was high at the time of the crash.
“Nothing like alcohol”
No test can do that, experts say.
Unlike with alcohol, users of marijuana experience the height of the drug’s effects after the active compounds have faded from detection, research suggests.
A British government study published in 2000, for example, found that blood levels of THC peaked around 10 minutes after smoking, then plummeted. But the strongest feelings of euphoria — and the most impaired driving — came 30 minutes after smoking, even though THC levels had fallen more than 75 percent in some cases.
Alcohol is much different. Though intoxication levels vary by weight, age, gender and other factors, it generally takes an hour for someone’s blood-alcohol content to drop by 0.015, according to the National Highway Traffic Safety Administration. That means if someone drinks enough to hit Oregon’s legal limit of 0.08, it can take more than 5 hours for the person to metabolize the alcohol in their system.
Scientists also have not established a direct link between THC and level of impairment. Two people can have the same blood level but significantly different experiences.
“It’s nothing like alcohol,” said Robert Jones, a supervisor at the Oregon State Police forensics lab in Clackamas. “The concentration of THC in the blood does not correlate to the effects.”
Marijuana is also loaded with complexity. Typical cannabis contains 70 to 80 substances aside from THC that can blur test results, said Jack Richman, a Boston-based pharmacologist who helps train police officers in Oregon’s Drug Recognition Expert program.
Results vary for each person. If Kitto smoked pot regularly in the days leading up to the crash, some amount of byproduct could have lingered in his system.
“You’re dealing with an age factor. You’re dealing with the amount of use factor. You’re dealing with the fact that you don’t know what’s in that cannabis,” Richman said. “It’s not like taking Valium. It’s not like taking OxyContin.”
Oregon collects blood samples only in fatal or near fatal accidents because the drug tests, done at private labs, run $200 to $400 apiece, said Sgt. Michael Iwai, state coordinator of the Drug Recognition Expert program.
Police can call for a urine test in other cases, but those show only whether someone used pot sometime in roughly the previous 30 days. That makes the tests worthless for trying to prove someone was high at a given moment.
In Washington, blood samples are tested for both active THC and the byproduct, said Lt. Rob Sharpe, a commander in the Washington State Patrol’s Impaired Driving Section. That gives police and prosecutors an extra layer of evidence.
But, he added: “There’s no calculation you can do that says X amount of time earlier this person had smoked marijuana.”
Letting officers decide
Backers of Oregon’s proposed law favor relying instead on a police officer’s observations.
“I think a more accurate measure is to look at impairment,” said Tamar Todd, a senior attorney for the Drug Policy Alliance, a national legalization group backing the ballot measure. “In my mind, the best way given what we know and what the science is, the best way to deal with impaired driving is the same way we have for many years.”
Already, Oregon law allows motorists to be convicted of drunken driving if their impairment is “noticeable and perceptible,” regardless of whether their blood-alcohol level exceeded the legal limit.
“We have the tools right now in Oregon, and we don’t need anything else,” said Darian Stanford, a former Multnomah County prosecutor who supports Ballot Measure 91. “For civil liberties reasons and cost reasons, I don’t think it [a THC limit] makes sense.”
In Oregon, now and under Ballot Measure 91, it’s up to officers to identify whether a motorist has been using marijuana.
First, the officer on the scene conducts a field sobriety test, though studies have shown the tests are only moderately effective in detecting marijuana impairment. A 2004 study conducted by three Australian pharmacologists found that field tests had a success rate of 39 to 56 percent. With low levels of THC, the tests detected only 26 to 39 percent of impaired people.
The next step is to bring in one of about 200 specially trained officers, who have passed a three-week training course, to conduct a rigorous 12-step test designed to identify subtle signs of drug impairment.
Training includes how to explain the findings to a jury. “If they can’t articulate it to the jury pool, all is forgotten,” Iwai said.
After the Clatsop County wreck, prosecutors charged Kitto with three counts of second-degree assault, two counts of third-degree assault, one count of possessing ecstasy and one count of driving under the influence. He faced a minimum of six years in prison.
Five other people were hurt, three seriously. Rabell and his girlfriend, Michelle Brugh, have recovered. Engbretson’s face has healed, but doctors told him the scar will never go away. The Corolla’s driver, Karen Anderson, escaped with a few scrapes.
Anderson’s mother, riding in the Corolla’s front passenger seat, took the brunt of the impact because the Subaru had veered so far into the oncoming lane. Audrey Zibelman, who had recently been appointed to New York Gov. Andrew Cuomo’s Cabinet, needed 14 surgeries to repair her intestines and broken back, plus months of rehabilitation.
“It was like it was accelerating, not stopping, not slowing,” Zibelman said at Kitto’s four-day trial. “It was like the car was just driving itself.”
Arguments at the trial hinged largely on what people said they saw. That proved tricky because once at the rave, only Rabell and Brugh stayed together.
Rabell testified that he saw Kitto smoking a joint with a disc jockey behind one of the stages around midnight. The next morning, Kitto looked like he hadn’t slept, Rabell told jurors.
Engbretson testified that the group smoked marijuana at the car about 7 or 8 a.m. — an hour or two before the crash. Kitto testified that he had five hits of marijuana at the rave and that the group smoked at the car at 5:30 or 5:45 a.m., just as the sun was rising. He acknowledged that he fell asleep at the wheel but said drugs had nothing to do with it.
His lawyer, William Uhle, told jurors that evidence of Kitto’s intoxication was flimsy. “What the case turns on,” he said, “is what was going on in his head at the time of the crash.”
On March 21, the jury found Kitto guilty of assault, downgraded to third- and fourth-degree, and driving under the influence. The ecstasy charge was dismissed after Engbretson admitted the capsules were his; Engbretson wasn’t charged.
Eleven days later, Circuit Judge Philip Nelson sentenced Kitto to four years in prison. He is now at Eastern Oregon Correctional Institution in Pendleton.
“It’s a sad thing what happened with Sam,” Uhle said in a recent phone interview. He still thinks the jury got it wrong.
“You wonder if it’s the right thing to do, but everybody was mad at him,” he said. “He drove 50 miles without weaving or anything.”
Marquis, the Clatsop County district attorney, has a hunch on why his office couldn’t make the more serious assault charges stick.
“In fairness, I can’t say this guy was entirely under the influence of marijuana,” he said. “I think the jury wasn’t all that sure, either.”