FRANKFORT, Ky. (FOX 56) — The Kentucky House is considering a bill that would change the way police test drivers for marijuana.
The current blood test is considered unreliable because THC, the active component in marijuana, can stay in the blood system for long periods of time after using it. Senate Bill 228 wants to adopt a more precise blood test to better determine if drivers are under the influence.
“Having a marijuana concentration of 5 or more as measured by a scientifically reliable test or tests of a sample of the person’s blood taken within two hours of cessation of operation or physical control of a motor vehicle,” reads the bill.
According to California NORML, a cannabis advocacy group, marijuana is detectable in the blood for single use users between 12-24 hours and 2-7 days for regular or frequent users.
Multiple states have adopted this type of testing with varying levels of THC being acceptable. This rule would place Kentucky in the more forgiving bracket when looking at marijuana DUIs.
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According to Foundation for Advancing Alcohol Responsibility, a nonprofit focused on promoting responsible driving in the United States, 11 states have some kind of zero-tolerance rule for THC, two states allow 2 nanograms, and three allow up to five. Other states currently have no THC-specific DUI laws. An interactive map of all these laws can be found on the responsibility.org website.
How Kentucky marijuana DUI test works
A blood test would need to be performed within two hours after the driver has been stopped. The law does not state a specific test or vendor authorities must use only stating, “by a scientifically reliable test or tests of a sample of the person’s blood taken within two hours.”
Testing positive for a marijuana concentration of five or more would automatically break the proposed rule and put drivers at risk of a DUI charge. But between 4 nanograms and 5, there is a gray area.
“If there was a marijuana concentration of less than 4 based upon the definition of marijuana concentration in Section 1 of this Act, it shall be presumed that the defendant was not under the influence of marijuana.”Senate Bill 228
Kentucky marijuana gray area
Under the proposed law drivers would be safe from breaking DUI laws while under 4 nanograms but if a test is greater than 4, then other factors can be used to decide if someone should be charged with a DUI.
“If there was a marijuana concentration of 4 or greater but less than 5 based upon the definition of marijuana concentration in Section 1 of this Act, that fact shall not constitute a presumption that the defendant either was or was not under the influence of marijuana, but that fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant.”Senate Bill 228