OWI In Iowa Without Being Impaired

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Zero-tolerance marijuana law means Iowans can get an OWI without being impaired. Is that law fair?

Sean Quinn was 21 the first time he was arrested on pot-related charges in Des Moines. He admitted to a state trooper he had smoked weed about six hours earlier that day, but he said he was not under the influence when he was pulled over on I-80 for failing to wear his seat belt.

Because of that admission, Quinn, now 41, was convicted of marijuana possession and operating while under the influence. The daily pot smoker would rack up other misdemeanor charges because of his habit, the consequences of which have followed him through life.

“I’m a friendly guy with a loving heart. But getting that first charge and, then, the other charges, kind of created a stigma for me. I developed a chip on my shoulder,” the Des Moines restaurant worker said. “I wasn’t able to get some jobs or housing because of those convictions.”

Longtime pot smokers may be familiar with Iowa’s zero-tolerance law when it comes to drugged driving: Quinn says he no longer smokes marijuana in his car because he doesn’t want to risk winding up with another OWI.

More states around the country, including neighboring Illinois, have loosened marijuana laws, and more Iowans are experimenting with legal marijuana in those states or using cannabidiol (CBD) products that may contain trace amounts of THC. But they may not know that Iowa’s stricter-than-most criminal code calls for drivers to be convicted of operating while under the influence if any evidence of pot is found in their system — even if they’re not impaired at the time.

“For an OWI criminal prosecution, prosecutors don’t have to prove impairment,” said Bobby Rehkemper, a Des Moines defense attorney who specializes in such cases. “They just have to prove it was in your system.”

While some believe law enforcement officers need to crack down harder on impaired driving as more states legalize medical and recreational pot use, others argue zero-tolerance laws like Iowa’s run counter to the reality of what’s happening with cannabis legalization and decriminalization nationally.

As more states legalize marijuana, sales soar
Legal sales of marijuana across the U.S. are projected to reach a record of around $43 billion annually by 2025, according to major market researcher New Frontier Data. In Illinois alone this past July, sales of cannabis products reached $127.8 million — the most since legal sales began there in January 2020, About a third of those sales were to out-of-state buyers, including in Iowa, just across the Mississippi River.

Thirty-six states and the District of Columbia now have medical marijuana programs; 18 and the District of Columbia allow recreational use, as well.

In addition, 27 states and Washington, D.C., have decriminalized possession of small amounts of marijuana, and 16 states have taken steps over the past decade to reduce penalties for marijuana, according to the National Conference of State Legislatures.

Iowa has a medical program for cannabinoids, but it’s one of the smallest and most restrictive in the country. With fewer than 4,800 registered card holders and only about a dozen recognized medical conditions that qualify, sales were less than $370,000 last year, according to annual figures from the state medical cannabidiol board.

Activists — including Iowa’s chapter of the National Organization for the Reform of Marijuana Laws, Black Lives Matter and criminal justice organizations — have called for liberalization of the state’s marijuana laws. But a bill that would have reduced the penalty for minor pot possession, changing its classification to a simple misdemeanor from a more serious misdemeanor, died during the Republican-led Legislature’s 2021 session.

This month, the U.S. Senate approved a massive infrastructure bill that includes a measure freeing researchers to study the marijuana that consumers are purchasing from states’ legal dispensaries instead of having to rely exclusively on federally grown cannabis. Because pot is a controlled substance under federal law, researchers who receive federal funding have been prohibited from doing research on the actual THC products sold legally around the country, raising questions about the completeness and validity of their data.

The Cannabidiol and Marijuana Research Expansion Act had bipartisan support and was co-sponsored by Sen. Chuck Grassley, R-Iowa.

Among other things, the act would allow researchers to study the marijuana people are legally buying to better understand impairment. It also would encourage states that have enacted legalization laws to educate people about impaired driving.

Carl Olsen, founder of Iowans for Medical Marijuana, who has spent decades lobbying for legalization, acknowledges more research is key to changing the law in Iowa.

“If researchers can show it’s not as bad as what they fear or as bad as alcohol, I think that could make a difference,” Olsen said.

Many Iowa legislators’ biggest concern: Impaired driving
Talk to state lawmakers about whether they think Iowa will eventually decide to legalize recreational marijuana and many will tell you a sticking point is the potential for more impaired driving and deadly crashes on Iowa roads.

Sen. Herman Quirmbach, a longtime Democrat from Ames, where an active Iowa State University chapter of the National Organization for the Reform of Marijuana Laws has advocated for legal weed, said he believes the federal government shouldn’t continue to classify marijuana as a Schedule 1 controlled substance — like heroin — because it’s been proven to have medical uses. He also believes Iowa’s criminal penalties for pot possession are too harsh.

Quirmbach said he’d consider supporting recreational marijuana in the state.

“But the biggest single question I would like to have answered is, ‘How do you deal with impaired driving? People who drink and drive … are a danger on the highway. We know that. I just don’t want to add that to that problem. Some people are going to smoke a little and drive, and I don’t know what the standard is, what the standard should be, what are the parallels to alcohol and what’s different than alcohol? If we legalize, where should we put the limits and how can we enforce them?”

Timothy Brown, director of drugged-driving research at the National Advanced Driving Simulator at the University of Iowa, said many employers and government officials around the world are asking the same questions.

They’re trying to find ways to identify drivers who are impaired by marijuana use without punishing people who just have traces of it in their system.

“The landscape is changing very quickly,” Brown said. “We’re just beginning to get a grasp on cannabis while other drugs are being decriminalized. We have to take it one challenge at a time.”

Complicating factor: THC can remain in system for weeks
Complicating much of the research surrounding cannabis is the fact that the body processes THC much differently from alcohol.

A blood-alcohol reading taken shortly after an accident closely correlates with intoxication because the body processes alcohol quickly. But THC can remain in a user’s blood and urine for weeks after marijuana is consumed, and long after the high is gone. The level of intoxication also hinges on a variety of variables, including the strain ingested and how it is consumed.

While opponents argue that expansion of marijuana legalization would spur more driving under the influence, proponents argue legalization could actually improve road safety because some drivers would substitute pot for alcohol, which studies have suggested impairs driving ability more.

Brown said the research in Iowa City has found that acute pot smoking does negatively affect driving, but it’s hard to say to what extent.

“We know there’s increased risk. How much risk remains to be seen,” he said. “But we know it doesn’t seem to be the same risk as driving at the legal (blood-alcohol) limit” of 0.08%.

Researchers studying people who use cannabis and then drive have noted many attempt to slow down and compensate for the effects in ways drunken drivers aren’t capable of, Brown said.

“They want to be safe. They are aware enough that they are not 100%, and they try to make adjustments,” Brown said. “You don’t necessarily see that with alcohol. Those drivers are less aware of their impairment.”

Researchers also have found it difficult to identify whether pot plays a significant role in fatal crashes.

“A lot of people use alcohol and other drugs together,” he said. But once law enforcement officers obtain a positive blood-alcohol test, they often stop searching for drugs, he said. “So it’s hard to get a full picture when you’re not looking for drugs at these crashes or road stops.”

States lack a standard for marijuana impairment
In recent years, a few studies have found crash rates go up when states legalize recreational use and retail sales of cannabis.

One by the Insurance Institute for Highway Safety in June 2021 found crash rates ticked up 6% for cases involving injuries and 4% for those resulting in deaths after legalization of recreational marijuana sales in California, Colorado, Nevada, Oregon and Washington. However, the researchers noted, only the increase in injury crash rates was statistically significant.

The findings of that study were consistent with a 2018 institute study of police-reported crashes, most of which did not involve injuries or fatalities. That study found that legalization of retail sales in Colorado, Oregon and Washington was associated with a 5% higher crash rate compared with neighboring states.

But there are major weaknesses in the data. Not all states test drivers in fatal crashes for drugs. And the national Fatality Analysis Reporting System data on drug-related fatal crashes includes drivers with any kind of drugs in their systems — even prescription drugs that aren’t known to impair driving.

Additionally, several researchers, including those at the National Advanced Driving Simulator in Iowa City, have found one of the biggest problems in using crash data to measure how marijuana impairs driving is a lack of a standard for impairment.

Brown said states are trying to identify an acceptable level of THC metabolites in the body so that drivers can demonstrate — through tests of blood, skin or saliva — that they are not impaired.

Researchers are also working on different tests, such as measures of impairment-related changes in eye responses, to help determine when people are intoxicated.

“We’re not as close (to answers) as most states would like us to be,” Brown said. “The preliminary research on changes in behavior in the eye are promising. But… transferring that to a larger scale can be problematic. In the broader population, there’s a lot more variability among individuals.”

Brown said he expects new tests to roll out in two to five years. In the meantime, law enforcement officials are also finding that officers’ body camera videos can assist them in demonstrating when a driver is clearly impaired, he said.

“That can be very powerful when a jury can see behavior that clearly shows impairment,” he said.

Official: Drugged driving a serious issue in Iowa
Iowa has seen no significant shift in drugged-driver fatal crashes since nearby states such as Colorado and Illinois legalized marijuana.

For decades, fatal crashes in the state have trended downward. Since 2013, the annual number of fatal crashes has fluctuated from as many as 402 to as few as 318.

Last year, however, the Iowa State Patrol said the pandemic triggered some of the most dangerous impaired driving troopers had witnessed in years.

Iowa’s Department of Transportation ultimately counted 304 fatal crashes, which caused 337 total fatalities. Seventy-two drivers involved in those crashes had alcohol and drugs in their system, and 53 had a blood-alcohol level over the legal limit. Forty-two drivers involved in the crashes tested positive for cannabis, according to Dennis Kleen, who works for the DOT’s Systems & Administration Bureau.

Iowa Gov. Kim Reynolds has repeatedly referenced drug-related traffic fatality data in interviews to underscore that law enforcement officers have legitimate concerns about marijuana use.

Todd Olmstead, a program administrator for the Iowa Department of Public Safety who coordinates drug-recognition training for state law enforcement agencies, said drugged driving has long been a serious issue in Iowa.

In a normal year, he said, about a third of Iowa’s traffic deaths are caused by impaired drivers.

“It has an impact on you,” said Olmstead, who was a member of the Iowa State Patrol for 27 years. “I’m doing what I’m doing now because I have seen so much tragedy on our roadways.”

Where pot is legalized, odor not enough for an arrest
As more and more states have legalized either medical or recreational marijuana, law enforcement officers are looking for evidence of impairment that goes beyond smelling the odor of marijuana coming from a vehicle or driver. In states that have legalized marijuana, odor alone is not enough to establish probable cause for an arrest, although it remains so in Iowa.

Each year, Omstead said, about 300 to 350 Iowa law enforcement officers learn more advanced techniques in recognizing drugged driving, and 12 to 15 become experts.

But officers also have arrested people who, defense lawyers contend, were lawfully in possession of medical marijuana or CBD.

Des Moines attorney Colin Murphy said he is representing a couple of out-of-state drivers who were arrested for possession of marijuana even though they have lawful medical marijuana cards from other states.

Under Chapter 124E.18 of Iowa’s Medical Cannabidiol Act, he said, an out-of-state patient who has a valid medical cannabidiol registration card is supposed to be able to legally possess or use medical cannabidiol just like someone who has a card issued in Iowa.

“The cases that we’ve been involved in are drivers who have flower (marijuana) in the original packaging from the dispensary. When the officer comes across it, it’s properly labeled,” he said. “Iowa was late to the process. But there are a lot of out-of-state card holders who travel in Iowa with their medicine — more than there are patients in the medical cannabidiol system in Iowa,” he said.

But Russell Rigdon, an instructor at the Iowa Law Enforcement Academy, said Iowa’s Medical Cannabidiol Act provides for dispensing of only medical CBD or low-content THC products. Smoking medical marijuana flower is illegal.

He said it’s illegal for anyone to drive a vehicle while under the influence of any controlled substance with THC or marijuana. But he’s not sure whether someone taking medical CBD at the recommended dose could meet the threshold required for THC in the bloodstream to be legally impaired.

Defense lawyer questions fairness of zero tolerance
Iowa remains one of 11 states — the others are Arizona, Delaware, Georgia, Indiana, Michigan, Oklahoma, Rhode Island, South Dakota, Utah and Wisconsin — that have zero-tolerance laws for THC, according to the National Conference of State Legislatures.

In upholding the current zero tolerance for THC under Iowa law, the state’s Supreme Court said in a 2013 ruling: “Policy arguments that the statute is too harsh should be directed to the legislature.”

Rehkemper said a change is long overdue.

Civil law in Iowa requires that impairment has to be proven to show a drugged driver was negligent in a wreck, he said.

That’s not true under the state’s current criminal code — even though thousands of people traveling in the state have the legal right to possess cannabis or use it in other states.

“A law has to make sense,” he said. “If someone gets pulled over and says, ‘I had a few gummies in Colorado over the weekend but now I’m fine,’ they can still be convicted. There’s no fundamental fairness there. What are we truly punishing?”