Posted by Edmund R. Folsom, Esq.

Date:   March 5, 2016

Last year, Maine’s Legislature rejected a proposal to define as operating under the influence (OUI) the act of driving a motor vehicle with 5 or more nanograms of THC per 100 milliliters of blood. This year, the proposal is back and is currently under consideration by the Legislature’s Criminal Justice and Public Safety Committee.  I posted my thoughts opposing last year’s proposal here,,  and I relish the chance to point out once more exactly what it represents.   This is a proposal to criminalize behavior not conclusively shown to be dangerous simply to make it easier to convict people of behavior that is in fact dangerous.  Law enforcement’s real difficulty here stems from the fundamental criminal law principle that no person shall be convicted of a crime unless each element of the crime is proven beyond a reasonable doubt.

The requirement of proof beyond a reasonable doubt recognizes that the criminal justice system cannot achieve perfection and that when it errs, as it inevitably will, it is preferable to err by allowing the guilty to escape than by condemning the innocent. That’s the underlying principle, but pressure mounts to bend principle to expediency when adhering to the principle becomes costly.  Just how many guilty people should we allow to escape punishment?  Do we really need to let 10 guilty people go free to avoid convicting a single innocent person?  Do we need to tolerate letting 25 guilty people go, or 50?  If police come to us and tell us that the guilty are going free in droves because they just can’t gather enough evidence of a particular crime to meet the nearly impossible standard of proof beyond reasonable, what should we do?  Should we reexamine the standard of proof beyond a reasonable doubt?  That’s not really a viable option, is it?  But we might redefine the tough-to-prove crime, to create a new easy-to-prove version– and that is exactly what is being urged in the proposal to define OUI as operating a motor vehicle with a level of 5 or more nanograms of TCH per 100 milliliters of blood.

Maine law defines the crime of OUI as operating under the influence of alcohol, drugs (marijuana included) or a combination of alcohol and drugs.   If the State proves beyond a reasonable doubt that a person drove a motor vehicle while that person’s mental or physical faculties were affected by alcohol, drugs or a combination of the two, the State has proven that the person committed OUI.  What, then, is the problem?  Law enforcement tell us they have a hard time proving beyond a reasonable doubt that a given person drove under the influence of marijuana.  They just KNOW the people they are arresting for OUI are under the influence of marijuana, but they can’t prove it beyond a reasonable doubt.   That damned standard of proof– the guilty are going free!    What they need, they tell us, is a per se standard like the one that exists for OUI-alcohol.   There’s a scientific consensus that at a .08% blood-alcohol level everyone suffers impairment.  The OUI law is intended to punish and deter impaired driving, and the number, .08%, is a clear threshold marker of impairment.  It’s much easier to persuade a fact-finder (judge or jury) beyond a reasonable doubt of a hard-and-fast number than to persuade one of impairment, given that what the State points to as signs of impairment by alcohol or drugs might often be attributable to other factors.  By analogy, wouldn’t it be wonderful for law enforcement if they could prove an OUI marijuana case by proving a hard-and-fast number instead of having to prove impairment?

That is how we have arrived at the pending proposal.   But unlike with a .08% blood-alcohol level there is no scientific consensus that a level of 5 nanograms of THC per 100 milliliters of blood marks impairment for all.  In fact, it appears that many people are not impaired at a level of 5 nanograms of THC per 100 milliliters of blood.  So a decision to redefine OUI to include driving with that particular THC level is a decision to criminalize behavior that is not dangerous enough to merit the condemnation of criminal conviction, purely because doing so makes it easier to ensure that those who do engage in behavior dangerous enough to merit criminal condemnation will not escape punishment.   I have seen it argued that setting this per se THC level would result in convicting the innocent, but it wouldn’t.  That’s the insidiousness of the proposal.  Increased numbers of the innocent would be convicted only if increased numbers of those who did not in fact commit the crime as defined were to be convicted.  This would happen if we were to reduce the burden of proof for the crime of OUI-marijuana.   But if we set a per se THC level that does not necessarily represent impairment, that will not lead to increased convictions of the innocent.  We can define as criminal virtually anything the Legislature can be persuaded to define as criminal, and if we convict someone for committing it we haven’t thereby convicted an innocent person.  The 5-nanogram-THC proposal leaves its proponents with clean hands, while they are able to reach the same result they would achieve if they were able to reduce the burden of proof  to something less than proof beyond a reasonable doubt for operating under the influence of marijuana.  It’s twisted, but you’ve got to hand it to them for the ingenuity.  The bill will probably pass.  If it does, at least you know the implications.


Update 3/12/16.  The Committee voted the bill ought not to pass.

Update 4/2/16.  Although the Maine Senate voted in favor of the bill earlier this week, the Maine House of Representatives unanimously voted it down on 4/1/16.

The pressure to erode standards for the convenience of law enforcement will continue unabated.

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