County Attorney Alan George is just plain wrong on SB5 effect.

Alan George of the Kentucky County Attorneys Association is wrong to state that Senate Bill 5 would not apply to marijuana (“Help keep drug-impaired drivers off roads,” Feb. 23 – Herald Leader). 

Kentucky law unequivocally allows police to test a person’s blood for marijuana if there is reasonable suspicion to believe they are driving under the influence. Just because urine testing is the “preferred method” doesn’t mean blood tests are unavailable.

 The current version of SB5 as amended states that a person can be convicted of a per se violation of DUI if they have any detectable level of a “controlled substance” in their body.   The last time we checked marihuana was a controlled substance.

 The problem with this theory is that traces of marihuana can remain in a person’s body for up to 30 days.  The ability of marihuana to have any affect on the body is eliminated within a couple of hours or less, but the substance can be detected long after the use of the substance.  This means that a per se violation can have nothing to do with a person’s ability to safely and soberly drive a motor vehicle, and it has everything to do to punish a person for using marihuana.  

 But it gets worse, since a person does not have to “use” marihuana for a high in order to accumulate a trace amount of the substance in his blood.  That is because you merely have to breathe smoke filled air that may have been expelled by a marihuana smoker.  The anti-smoking crowd has obtained laws banning smoking in bars on the scientific claim that even  breathing second hand smoke can harm non-smokers in the same room.

So SB 5 really has very little to do with an alleged problem of marihuana use affecting one’s driving ability and motor functions.  Further, the bill allows the use of a controlled substance if it is prescribed by a physician. So doctors, under SB5 could possibly grant motorists an exemption to drive under the influence of Xanex, Valium, Morphine, etc
 
 It has been our experience that urine testing is the most legally questionable DUI test, since it is almost impossible to conclude from a positive urine test that the driver used the controlled substance was actually under the influence of the drug while in the act of driving. 

County Attorney George’s misrepresentation of the law is not the issue here — he truly seems to think it acceptable to convict people of driving under the influence for simply having traces of a controlled substance in their system.

 George’s reasoning ought to set off alarm bells. He argues that because possession of controlled substances – including marijuana, which can be detected in the blood weeks after use – is a crime, then it shouldn’t matter if those who commit that crime are convicted for another crime they didn’t commit — DUI.

 It’s disingenuous of him to suggest that anybody who objects to this poorly conceived and poorly drafted legislation is somehow pro-drug.  As a former trial judge, I believe that real science should be the basis for criminal laws involving drug use and driving, and the use of “per se” language in this context is a badge of scientific fraud.

Kentucky law already adequately covers any impaired driving, regardless of the substance.  Judge Judy West once authored an opinion that held that even use of “stewed prunes” by a driver could provide the basis for a DUI conviction under Kentucky law, if the use of stewed prunes impaired the driver’s ability to drive.
SB 5 makes a mockery of our current DUI laws, which exist to protect citizens from drivers who are dangerously impaired. You don’t have to be pro-drug to be pro-sense. 

As a retired Judge who has convicted hundreds of people for DUI offenses, I have to conclude that SB 5 is, with the physician’s prescription exemption provision, a pro-drug bill since it will allow drugged driver’s who could be convicted under current Kentucky law to be acquitted, since prescription drugs which are illegal to have in your blood while driving under current law, will become legalized under SB5.  

 This same bill died in the last session of the General Assembly and should die in this session.


 

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