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  • garriganchey

ALERT: SB46 Proposed Amendment Threatens Medical Marijuana and CBD Oil in Alabama

Updated: May 12, 2021

Alabama's bill to legalize medical cannabis has one last hurdle to becoming law: a signature from Governor Kay Ivey. Yet, an amendment that failed in the House is now still possible if former state representative Paul DeMarco is successful, according to Alabama Political Reporter.

In a meeting of state GOP leaders, DeMarco asked (through someone with the governor's office) that Ivey send the bill back to the legislature with a suggested amendment that would make it illegal to be driving with any level of THC in a person's system. Maybe DeMarco doesn't realize that was already rejected.

If this amendment ends up in the bill, it would mean that even CBD oil users could not legally drive to work. (CBD oil has a low level of THC.) While maybe well-intentioned, it would make people have to choose from medical relief and driving to work.

Is their goal that all CBD oil and medical cannabis users stay at home and not work? Or is it to deny law-abiding Alabamians from benefiting from the medical properties of cannabis? Ironically, CBD oil and medical cannabis actually increases productivity and mobility for many because it decreases their debilitating symptoms. Isn't this what we want?

Additionally, if she does send it back to the legislature and the House again rejects that amendment, we may end up with a conflict between what the governor is willing to sign and what the House is willing to vote for. We need to nip this now.

We urge you to contact Governor Kay Ivey to ask her to vote for the bill as is.

Why Is This Amendment Bad Policy?

We have reliable sources that tell us that requiring drivers to have no THC is unreasonable, not effective, and will prohibit the benefits of responsible medical use. One source is a 2019 Congressional Research Service report (Marijuana Use and Highway Safety). Also, local attorneys have explained current law. Here are some points they make and issues these raise:

THC lingers in the system long after any psychoactive effect (theoretical impairment) is gone.

From CRS report summary page and page 11: ". . . the body can store THC in fat cells, so that traces of THC can be found up to several weeks after consumption," And ". . . tests can show the presence of metabolites of THC, which themselves are not impairing, for weeks after consumption." This means the proposed amendment would prevent anyone who takes medical cannabis from legally driving for weeks.

THC presence in the system does not indicate impairment.

From CRS report summary page: "Research studies have been unable to consistently correlate levels of marijuana consumption, or THC in a person’s body, and levels of impairment." This means testing THC does not determine if there is impaired driving. Of course, we already can understand this concept since a person can have a low level of alcohol in their system and not be considered impaired for driving. (Alabama's law allows a blood alcohol level for drivers up to .o8%.)

Zero tolerance for any THC level is inconsistent with current state law.

From Segal & Segal LLC law firm in Huntsville: "In Alabama, you can be arrested for and charged with drugged driving under Ala. Code Ann. § 32-5a-191(a) if you are driving or in actual physical control of a vehicle while under the influence of drugs or controlled substances to the point that you are incapable of driving safely." If DeMarco's proposed amendment is adopted, that would mean a driver cannot have any level of cannabis in their system, but it would be ok to have some level of other drugs in their system, such as opioids. Current law primarily uses behavior to determine whether there is actual impairment of driving from drugs, instead of relying solely on a blood test. This is the standard that should remain for THC, whether state law allows cannabis use (for medical purposes) or not. A drug test is done only if there is harm done in an accident and impaired driving is thought to be the cause

The science is uncertain and risk for accidents is low.

From CRS report pages 5 and 8: "Relatively few epidemiological studies of marijuana usage and crash risk have been conducted, and the few that have been conducted have generally found low or no increased risk of crashes from marijuana use." And " . . .studies have estimated the increased crash risk for drivers testing positive for marijuana at between zero and three times that for unimpaired drivers, roughly comparable to the increased crash risk of having a blood alcohol content of between .01% and .05%, well below the legal per se impaired level of .08 BAC," While impaired driving from THC is possible, even those with THC in their system do not have the level of impairment that alcohol at a legal level (.05-.08%) does. If impaired driving is the concern, the law should first change on what level of alcohol is allowed for drivers.

Correlation is not causation.

From CRS report page 9: "A driver who has been involved in a crash may have used marijuana shortly before the crash; that correlation (marijuana usage and crash involvement) does not alone prove causation (that the marijuana usage was the cause of the driver being involved in a crash)." Studies that show the percentage of accidents where a driver had THC in their system does not indicate the THC caused it. Other factors cause accidents (distracted driver, misjudgement, etc.), and those factors can cause an accident whether someone has THC in their system or not.

Testing does not reveal impairment.

From CRS report page 11: "Consequently, tests that show the amount of THC in the subject’s body are poor indicators of impairment, how recently a person has used marijuana, or whether the person used marijuana or was simply exposed to second-hand smoke." We don't have reliable and easy-to-use tests that can tell by THC levels whether someone is impaired. The research is not there. Marijuana properties and how it metabilizes and it's affect on the body is not the same as alcohol.

What should be done about impaired driving from marijuana use?

We agree with the statement from a white paper published by Weedmaps: ". . . there are three major points worth highlighting: (1) cannabis-impaired driving is a policy issue regardless of whether a state has any form of legal cannabis access; (2) cannabis laws—whether medical or adult-use—are not associated with increases in traffic fatalities; and (3) cannabis is just one of many substances (e.g. alcohol, physician-prescribed opioids, and illicit drugs) that contribute to impaired driving and, therefore, should be addressed within the broader context of reducing all forms impaired driving."

We do not want impaired driving. But the current law against driving under the influence has been sufficient for suspected impairment from other legal and illegal drugs. Making medical use of cannabis does not change how to determine whether a driver is impaired from a substance. There's a reason the current law doesn't say any THC in a test is determinate of impaired driving from cannabis. So the law on driving impaired should not be changed.

We support research into how cannabis can affect driving. And we support research into how to effectively test impairment from marijuana. But the science does not support the theory behind DeMarco's amendment. And it would also criminalize driving for weeks after someone uses cannabis for medicinal benefits. But even worse, it would prevent anyone who drives from the legal use of CBD oil (which has a trace of THC), denying Alabamians from benefiting from what even the federal government says is a legal product.

Therefore, we urge all to contact Governor Kay Ivey and tell her to sign SB46 as is.


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