By Guy Page

Theodore Haley, 37, of White River Junction died Sept. 3 on I-91 in Norwich. He was crushed beneath a pickup truck driven by a man who tested positive for marijuana, news reports said. Haley was a passenger in the car when it hit the Interstate median, ejected him, and pinned him beneath.

Ted Haley was described in his obituary as “a simple and forgiving man” who leaves behind a grieving family, including a daughter described as “his greatest love.” He was a victim of one of the growing number of marijuana-related highway accidents in pot-legal states.

The Insurance Institute for Highway Safety in November reported a 6 percent increase in marijuana-related accidents in “legal” Nevada, Washington, Oregon and Colorado, compared to surrounding “illegal” states.

Guy Page is affiliated with the Vermont Energy Partnership, the Vermont Alliance for Ethical Healthcare, and Physicians, Families & Friends for a Better Vermont.

Legal pot begets more consumers which begets more stoned drivers which begets more accidents. It’s a simple equation. Easy to understand. The marijuana industry wants us to ignore this. It wants us to be lemmings. It tells us that now that Massachusetts, Maine and Quebec have gone off the commercial cliff, Vermont risks being “left behind.”

Okay by me. Leave us behind. Please. When a state commercializes an industry that considers it acceptable collateral damage when more pickup trucks careen off freeways and slam into rock ledges, that’s not Progress. That’s something else: Profit over people.

The operator of the truck that killed Haley survived. He was charged with “grossly careless and negligent operation with death resulting,” with trial set for February 19. Notice the lack of any drug impairment charge. There’s no accurate breath or saliva test for marijuana impairment. This week state police announced a blood test had found THC in his bloodstream. Unfortunately DUI-marijuana is relatively hard to prove, even with a blood test.

In Colorado, DUI-alcohol arrests have about a 92% conviction rate – less than one in 10 (table 38, July 2018 Colorado Dept. of Public Safety study). By contrast, convictions for DUI-marijuana are a paltry 69 percent– about a one-in-three chance of beating the charge in court.

Alcohol’s time-tested, reliable, on-site Breathalyzer test gets you a swift conviction if you refuse or fail it. No comparable test exists for marijuana. In Colorado a blood level of five nanograms THC/milliliter creates a “permissible inference” for marijuana DUI, which is as wimpy as it sounds. The judge tells the jury, if there’s other evidence, and if there’s a 5 ng/ml test, they are permitted to infer impairment. Refusing to take the blood test may get your license suspended, but even that’s not ironclad. A Colorado impairment expert told me, “a five ng/ml limit suffers from the following flaws. It is scientifically invalid. It ignores the vast majority of causes of drugged driving (polydrug impairment). It is prosecutorially ineffective. It is judicially unsound.”

In other words – based on the conviction rates and the legal arguments against it, a Colorado-style DUI marijuana arrest is a soft charge, compared to DUI alcohol. That’s why Colorado lawyers know they don’t need to be Perry Mason to successfully defend DUI-marijuana defendants. One law firm assures worried would-be clients:

Prosecutors have a difficult time proving that drivers are impaired by marijuana use at the time of the arrest. Unlike alcohol, which has proven, measurable impairments that are easy to detect using blood tests and breathalyzers, marijuana is much harder to detect. It is not linked with a certain level of impairment, and can have different effects on individual users. This makes it hard for prosecutors to convince juries that DUI defendants were physically and mentally impaired while driving under the influence of marijuana.

So, will victims of DUI-marijuana get justice in Vermont? Maybe.

But maybe not, if the driver gets a good lawyer.

Statehouse Headliners is intended primarily to educate, not advocate. It is e-mailed to an ever-growing list of interested Vermonters, public officials and media. Guy Page is affiliated with the Vermont Energy Partnership; the Vermont Alliance for Ethical Healthcare; and Physicians, Families and Friends for a Better Vermont.