Edmund R. Folsom, Esq.

Date:  May 1, 2015


Here I will spill a few words on the legislative effort to define the crime of OUI to include operating a motor vehicle with 5 parts per billion of THC in the driver’s blood. I have a fundamental problem with this effort, beginning with the lack of scientific foundation that this level of blood-THC represents a state of impairment. Yesterday, in Augusta, the Maine Bureau of Highway Safety and AAA presented the Maine Impaired Driving Summit. Speaking at that summit, according to the news story linked below, were Jake Nelson, Director of Traffic Safety for AAA, and Barry Logan, Chief Forensic Toxicologist for NMS Labs (a lab that does a fair amount of forensic analysis for Maine law enforcement). Both criticized setting the level of 5 ppb of blood-THC as the per se level that defines the crime of OUI, because there is a lack of scientific foundation for it. The news account below reports that “marijuana advocates” criticized the Legislative effort. I’d like to go on record with my own criticism, as one who is in no way a “marijuana advocate.” In present day culture, where “should” and “shouldn’t” are relegated to the purview of judgmental haters, and where the only thing that counts is what is and is not legal, I think it’s a big mistake to celebrate the notion that everybody must get stoned. But that’s another kettle of fish for another time.

OUI is an odd crime. Traditionally, society identifies behaviors harmful enough to warrant criminal condemnation and then defines crimes accordingly, to condemn and punish those who engage in the harmful behaviors. It is law enforcement’s job to develop methods to detect when a crime has been committed and to prove beyond a reasonable doubt that a person charged with the crime actually committed it. If a crime is sometimes difficult to prove, that is not grounds to redefine the crime, to conform it to easier methods proof and ensure that more people are convicted. To redefine crimes for that reason shifts the focus from criminalizing harmful behavior to criminalizing behavior that allows us to convict more people. Yet this is exactly what we have done with the crime of OUI. At the outset, society identified a harm presented by people who drove under the influence of alcohol or drugs. To address that harm, we criminalized the behavior of driving under the influence of alcohol or drugs. As time went on, society was persuaded that people who drive while less than grossly impaired by alcohol or drugs are dangerous enough that this behavior should also be criminal. Yet it’s difficult to prove subtle degrees of impairment beyond a reasonable doubt. A person might be seriously impaired in her ability to navigate traffic in an automobile well before she shows signs of impairment gross enough to convince a jury beyond a reasonable doubt that she was under the influence. Scientific evidence was brought to bear to demonstrate that peoples’ ability to drive is dangerously affected by a blood-alcohol level of .10%. Therefore, with their focus still on the demonstrable harm presented by the behavior, legislatures reacted to this information by criminalizing the act of operating a motor vehicle with a blood alcohol level of .10% or more. Later, the crime of OUI was again re-defined, to include operating a motor vehicle with the lower blood-alcohol level of .08% or more, due to scientific evidence that a blood-alcohol level of .08% is associated with a dangerous level of impairment.

But proving that a person drove with a certain blood-alcohol level presents its own set of proof problems. Securing direct proof of a person’s blood-alcohol level requires that police take blood samples from suspects, have that blood analyzed in a reliable way, maintain a chain of custody for the evidence, and demonstrate the reliability of the results in a court of law. These proof problems led law enforcement to seek a less cumbersome method of proving a person’s blood-alcohol level, and they found that method in the form of breath testing. However, breath tests do not directly measure the alcohol in a person’s blood. Instead, they detect alcohol in a person’s breath and use a conversion ratio to provide an approximation of the person’s blood-alcohol level. That assumed blood-alcohol/breath-alcohol conversion ratio is 2100 to 1, but that is not necessarily the actual ratio between a given person’s blood-alcohol level and breath-alcohol level at any given time. Instead, it is an average. This creates a question in any given case whether a given breath test result accurately represents the person’s blood-alcohol level.

This problem of proof was the impetus for the legislative slide toward defining crime to fit methods of proof, and away from defining crime based simply on the harm caused by a particular behavior. Defense attorneys were sometimes able to show that doubt exists when an assumed ratio is used to establish a person’s blood-alcohol level by use of a breath test result. This was too much for law enforcement to take, so they convinced the Legislature to change the definition of the crime of OUI itself, to accommodate their difficulties of proof. The accommodation came in the form of a redefinition of OUI that includes operating a motor vehicle with a blood-alcohol level of .08% or more or with a breath-alcohol level of .08% or more. Even in a case in which a person’s true blood/breath ratio, if known, would establish that the person’s .08% breath test result reflects a blood-alcohol level of .07% or .06%, the person is guilty of OUI anyway, because the crime is now defined as operating with a .08% breath-alcohol level, regardless of blood-alcohol level. This redefinition was not undertaken because it was scientifically demonstrated that a person who operates with a .06% or .07% alcohol level is dangerous, but purely because it is easier for law enforcement to prove a person’s breath-alcohol level than blood-alcohol level.

Now law enforcement urges us to continue our slide, away from a focus on demonstrable harm and toward convicting more people regardless of harm, this time by redefining OUI to include operating a motor vehicle with a blood-THC level of 5 ppb or greater. Unlike the case with blood-alcohol levels of .08% or .10%, there is no solid scientific foundation to demonstrate harm associated with operating a motor vehicle with 5 ppb blood-THC level. But law enforcement has already convinced the Legislature once before to shift its focus from criminalizing demonstrably harmful behavior to criminalizing behavior that is easier for law enforcement to prove. From the law enforcement perspective, what we need in order to ensure that nobody gets away with driving when they are impaired is the ability to convict lots of people who have not reached the level of actual impairment. The theory seems to be that it’s better to sweep broadly, condemning and punishing a bunch of non-dangerous people in order to catch more dangerous people, than to sweep narrowly, targeting only the dangerous people at the risk that some dangerous people will escape punishment.  This essentially inverts Blackstone’s principle that it’s better that 10 guilty people might go free than that 1 innocent person might be convicted, except that the burden of proof isn’t reduced in this strategy; instead, criminality itself is defined at a low enough threshold to allow criminal conviction for benign behavior.  I think providing a feedback loop for law enforcement to define or redefine crime to fit ease of detection and conviction, without convincing proof that the behavior defined as criminal is harmful enough to merit being criminalized, perverts the criminal law– just another of my strange ideas, I realize.  To steal and alter a bit from President Eisenhower, beware the law enforcement/industrial complex, it has the best interests of its players in mind, not always yours.