Cannabis consumers can protect themselves from unreliable police methods to determine impairment with new insurance coverage that provides financial and legal protection for those charged with driving under the influence of marijuana. The new insurance product from Salt Lake City-based Reepher launched this week in Missouri, with a nationwide rollout ultimately expected.
Justin Kahn, CEO and co-founder of Reepher, noted in a statement from the company that drug tests for marijuana do not indicate if a person is high. Instead, the tests detect the presence of cannabis metabolites, which can remain in the system for weeks after ingestion, particularly for frequent users.
“Unlike alcohol, there is currently no chemical test for cannabis impairment. THC and cannabis metabolites stay in your system and can trigger positive drug test results in sober drivers,” Kahn said. “This means that a regular cannabis consumer is likely to fail a drug test regardless of the last time they consumed it.”
As cannabis legalization continues to spread across the nation, law enforcement agencies have a heightened awareness of the very real problem of those who choose to get behind the wheel while they are impaired by marijuana. But when a person is arrested for a cannabis DUI, police and prosecutors use unreliable drug screenings as proof that the offense has been committed.
“Cannabis DUIs are on the rise in every state, and the police use testing methods that show the presence of THC, not impairment,” said Kahn.
Police Methods To Determine Marijuana Impairment Are Unreliable
Exacerbating the problem of drug tests that look for molecules instead of evidence of impairment are the tactics that law enforcement agencies employ to identify impaired drivers. In many states, police use so-called drug recognitions experts (DREs) to determine if a driver is under the influence of alcohol or drugs. But the training these police officers receive to be certified as a DRE and how that education is employed in the field is increasingly coming under fire.
In 2017, the Georgia chapter of the American Civil Liberties Union of Georgia filed a lawsuit against the Cobb County Police Department on behalf of three drivers who were arrested for DUI based solely on the roadside investigation and suspicions of a DRE.
“What’s really troubling about these warrantless arrests is we have police officers who are going around on our streets, arresting innocent people and throwing them into jail based on a training that is completely unreliable and is based on junk science,” said ACLU attorney Sean Young.
DREs are trained to look for physical signs of impairment such as red eyes or pupils that fail to constrict or recover normally. But the signs these officers look for can all be present for other reasons. In Cobb County, the three drivers were arrested even though no drugs were found in a search of the vehicle involved. Despite any other evidence, they were arrested and jailed on suspicion of DUI and were only exonerated after blood tests failed to show the presence of any drugs.
“What’s troubling to me is that these police officers are being told that they can now conduct medical examinations on random people by the side of the road,” Young said. “I wouldn’t trust my own brother to do a medical exam on me because he’s not a doctor. And so, why are we allowing – why are these police departments allowing police officers to go around doing medical tests on people? That’s wrong.”
The problem of questionable arrests by DREs is not limited to Georgia. In 2019, a Massachusetts judge threw out the testimony of a police officer who had been certified by his department as a DRE, writing that the officer “is not an expert on the effects of certain narcotics on the body nor is he qualified to offer an expert opinion as to whether” the defendant “was under the influence of certain narcotics.”
And in New Jersey, cannabis regulators are delaying rules for determining if a person is under the influence of marijuana in anticipation of a state Supreme Court ruling on the validity of the training DREs receive and the tactics they employ. Similar methods are used to determine impairment in the workplace.
“We are waiting to see what is going to happen with that case,” New Jersey Cannabis Regulatory Commissioner Krista Nash said at a business event earlier this month. “We don’t want to write rules and then have a court case settled be in conflict.”
Cannabis DUIs Come With A Steep Cost
The unreliability of drug screenings and DRE protocols to determine if a someone is driving under the influence can lead to arrests of drivers who are not impaired, resulting in thousands of dollars in legal fees. Other methods including the development of a “marijuana breathalyzer” also appear problematic.
With a policy from Reepher, the company will cover up to $15,000 in eligible expenses including payment for a legal defense team of the member’s choice, car towing or impound fees, alternative transportation, pre-trial costs, personal hardships, incidental expenses and time spent in court.
To get cannabis DUI coverage, consumers are required to sign up in advance and become a Reepher member. Then, if a member is arrested or charged with a cannabis DUI, they can file a claim that includes documentation of the event. An initial payment is made to the member when the claim is approved, and additional payments are made as the case progresses.
Kahn said the Reepher is not “encouraging or empowering anyone to drive high.”
Instead, the company is offering protection for cannabis consumers who must deal with continuously evolving state cannabis policies and a justice system ill-prepared to determine marijuana impairment.
Although the coverage is so far only available in Missouri, Reepher plans to launch coverage in other states soon. Oregon and Georgia are the next states on the company’s rollout list, with policies expected to be available in the next 60 to 90 days. More information is available from the Reepher website. Plans start at $15 per month.
“Cannabis consumption may be legal in some states,” Kahn said, “but driving under the influence in all 50 states is not.”
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