Oklahoma law enforcement officers patrolling the state’s roads and highways may soon have a new tool for testing drivers who they believe may be under the influence of marijuana.
Signed by Gov. Kevin Stitt on May 21, HB 4161 directs the Oklahoma Department of Public Safety to spend $300,000 to create a pilot program to explore the use of breathalyzers to detect tetrahydrocannabinol (THC), which is the primary psychoactive component of marijuana.
Rep. Scott Fetgatter (R-Okmulgee) is among the most engaged state legislators on the topic of Oklahoma’s medical marijuana industry. He said he had first raised the idea of a breathalyzer program at “a meeting in February with representatives from city police, county sheriffs and the Department of Public Safety.”
“We took them through the science behind the breathalyzer, and I took a vote among those in the room if they were interested, and it was unanimous,” he said. “They were all in favor of the idea of a pilot program.”
The development of a device to detect THC from a user’s breath has puzzled scientists for years. Having a dependable breathalyzer would solve a sticky problem for officers in the field, who lack the ability to accurately and quickly test impaired drivers rather than using drug recognition experts and blood tests.
How the technology works
One company the state has been talking to is the California-based Hound Labs, which makes THC breathalyzer devices. The devices used to cost $3,000 each, but senior marketing manager Louisa Ashford said pricing now varies based on application and volume.
Using a Hound Labs THC breathalyzer is similar to using an alcohol breathalyzer. A disposable cartridge, which is about the size of a large smartphone, with a plastic tube is inserted into the device. The user then blows into the tube for two minutes and can take as many breaths as as necessary over that time period. Quickly, the device determines the level of THC in the user’s system.
According to the the company’s website, the device can detect THC at levels of one trillionth of a gram per liter of breath. That means if someone smoked marijuana or consumed edibles three hours before, it would be detected in their breath by the device.
How high is too high?
But the quantity of THC needed to cause impairment has not been clearly established. While .08 is commonly used as a blood alcohol level standard in many states, no such baseline exists for THC.
In Colorado, anyone operating a motor vehicle with more than 5 nano-grams per milliliter of blood is considered impaired. A nano-gram is one billionth of a gram.
Currently, Oklahoma has a zero tolerance policy when it comes to the presence of THC in blood. Any amount is considered illegal while operating a motor vehicle, even if the user has a medical marijuana license.
“If you take a blood test and you test hot for marijuana, it’s an automatic DUI,” Fetgatter said. “That’s terrible, because you may not have used it in a week. I’m trying to solve a problem so we don’t convict people of DUI simply because of the way marijuana metabolizes in their blood.”
Establishing a baseline for impairment is one of the goals of the pilot program, Fetgatter said.
“We haven’t gotten that deep into the machine calibrations and how that will be done, which is another reason why we need to do the pilot program,” Fetgatter said. “It is subjective. Someone who uses marijuana regularly might not be affected in the same way as someone who uses it for the first time. Just like for me — I don’t drink, so if I go out and have two glasses of wine, it might affect me differently than someone who regularly drinks.”
‘It would be a great tool to have’
Oklahoma Department of Public Safety spokeswoman Sarah Stewart told The Oklahoman it could take up to a year for the program to get off the ground. Stewart said the department hopes to observe other states as they make forays into using breathalyzers in order to help determine rules for Oklahoma’s program.
When it does start, participation in the pilot program will be voluntary and results won’t be admissible in court. People pulled over on suspicion of driving under the influence will have the option of using the breathalyzer or undergoing blood tests. As an incentive to participate, a driver who opts for the breathalyzer might be released to a relative or friend rather than be taken to jail. Fetgatter stressed none of those details have been finalized, however.
“None of the information collected during the pilot would be admissible in court or held against you, in the event it is used in the field,” Fetgatter said. “If someone fails a field sobriety test and is under suspicion of using drugs, that impaired person might be given the option of using the breathalyzer and be released to someone who is able to drive them home if they were willing to participate in the pilot, but a lot of that hasn’t been worked out.”
Blood tests can take several days to process. Beyond that, they don’t always reflect the driver’s level of impairment at the time the sample was collected, because THC can be detected in a person’s system weeks after use.
Midwest City Police Chief Brandon Clabes said he is in favor of adding tools for law enforcement officers. Currently, Midwest City, like all police departments, relies on blood tests and officers trained as drug recognition experts to determine if a driver is impaired by something other than alcohol.
“The blood tests aren’t really cost prohibitive, but they do have to best sent to the OSBI lab, which can take some time,” he said. “We also have officers who are DREs, and they go to school for that. It’s a two-week program that is very intense. But it is also labor intensive.”
Clabes said he hasn’t seen an increase in impaired drivers in Midwest City since the state’s medical marijuana program started, in 2018, but he said he knew when it began that the issue of driver impairment might be troublesome.
“When they first passed it, I knew we would probably need some technological advances in the way we handle these situations in the field,” he said. “Now it looks like that has come to fruition. Of course, it still has a ways to go with the process, but it sounds like it would be a great tool to have.”
HB 3228 remains dead
The bill was presented to legislators as putting in place measures requested by the Oklahoma Medical Marijuana Authority. It passed the House 90-6 and the Senate 38-5.
In his veto message, Stitt said the bill “makes substantial policy changes to the medical marijuana program that were not fully scrutinized through normal legislative procedures.”
Stitt’s action was criticized by Fetgatter and others, but lawmakers ultimately did not try to override the veto before the Legislature’s official sine die adjournment May 29. (Though lawmakers left the Capitol on May 22.)
Senate President Pro Tempore Greg Treat (R-OKC) told NonDoc last week that the Senate did not have the votes for a veto override on HB 3228. He also said questions had been raised about whether the director of the Oklahoma Medical Marijuana Authority actually wanted all measures in the bill to be put in place.
(Correction: This article was updated at 1:30 p.m. Tuesday, June 2, to note the correct date that Stitt signed HB 4161 and to add more accurate information regarding Hound Labs’ product.)