That’s where Northern California-based Hound Labs comes into play. Launched in 2014, the company plans to bring its THC-sensing breathalyzers to the market in early 2020.
“The issue law enforcement is expressing in New Jersey is real and significant. Other states that have gone ahead with recreational adult-use sort of gave the topic not enough attention,” said Doug Boxer, vice president of Hound Labs. “Law enforcement and employers don’t have real, good ways, a good methodology, to determine if someone has used marijuana.”
Opponents of legal weed and some law enforcement officials have worried about a lack of measures for catching drivers under the influence of marijuana, the effects of which are less predictable than alcohol. Right now, there’s no widely-accepted quantifiable measure for cannabis intoxication, though the National Institutes of Health have come to a consensus on what a cannabis high looks like. Experts trained to recognize a high driver in the field, not blood testing, is the best indication of driver impairment, studies show.
But prosecuting those cases is still costly, both in time and money. And without a legal threshold of what constitutes intoxication, cases get thrown out of court.
In 2006, the state Supreme Court threw out a marijuana DUI conviction against man who was driving erratically and had marijuana on him because the officer who arrested him wasn’t an expert in assessing the effects of marijuana use.
The Hound Labs device measures THC — the active compound in marijuana that makes a user feel high — in breath. It picks up the compound in parts per trillion within three hours of someone consuming THC, either by smoking or eating an edible. It can also measure blood-alcohol level.
But it does not measure the THC as alcohol tests do, calculating blood-alcohol level. With those, police can measure impairment on parameters tried and tested over decades. Instead, the Hound breathalyzer just picks up the presence of THC.
That works, according to the company’s own tests, because THC impairment matters more based on how recently you’ve consumed weed. It’s that two-to-three hour window where impairment is the highest, Boxer said.
“Impairment is really based on how recently you’ve used, not how much is found in your breath,” he said.
Others have urged caution about that determination.
“I’d want to hear more from experts,” said Chris Leusner, the police chief in Middle Township and president of the New Jersey State Association of Chiefs of Police. He worries that without rigorous scientific baking of the methodology used by Hound Labs, any evidence gathered from the device might not be admissible in a DUI case.
“I am hopeful technology will provide tools,” he said. “This might be a tool.”
The Hound Labs cost of $5,000 for the unit and an additional $20 for each cartridge needed for a test does not jump out at Leusner as prohibitive. He’s researched other THC tests himself, traveling to Canada to learn what best practices New Jersey might employ.
Traces of THC can stay in a person’s system for a month, making blood tests faulty. Someone who hasn’t smoked in months could take two puffs of a joint and be impaired, but that could fail to appear on a urine or blood test. Meanwhile, someone who smokes regularly could stop for a few days and fail a drug test, and they would not be impaired.
But for those concerned about more instances of impaired driving with legalized marijuana, Leusner said he doesn’t think the breathalyzer will be enough to change their minds.
Others say there are too many unanswered questions: What actually constitutes impairment? Will these measures wrongfully convict innocent people, or will impaired drivers get off free?
“To get an active blood measurement of THC through breath, is, I think, going to be a challenge for these people,” said John Sitzler, a Hainesport-based criminal defense attorney. “What’s the cutoff? I think it gets tricky, particularly with the limitation on the technology as it is.”
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