The Trouble with Impairment in a Medical Cannabis State

THE TROUBLE WITH IMPAIRMENT IN A MEDICAL CANNABIS STATE

Presented and Prepared by: Stacy E. Crabtree [email protected] Peoria, Illinois • 309.676.0400

Heyl, Royster, Voelker & Allen, P.C. PEORIA • CHICAGO • EDWARDSVILLE • ROCKFORD • SPRINGFIELD • URBANA

I. INTRODUCTION ...... C-3

II. WHAT IS MEDICAL CANNABIS ...... C-3

III. ILLINOIS LAWS ...... C-4

A. Compassionate Use Act ...... C-4 B. DUI Law ...... C-5

IV. IMPACT ON CLAIMS HANDLING ...... C-7

The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted.

C-2 THE TROUBLE WITH IMPAIRMENT IN A MEDICAL CANNABIS STATE

I. INTRODUCTION

One of the more significant issues with the recent legalization of medical cannabis in Illinois concerns the difficulty in determining when a patient is impaired. Although medical cannabis is legal in Illinois, operating a motor vehicle while impaired by the drug is not. With respect to alcohol, in contrast, a claimant is presumed to be legally impaired when his or her blood alcohol content (BAC) exceeds 0.08 (g/dL). But no comparable legal limit has been set for cannabis in Illinois. So how does a law enforcement officer determine whether a driver is impaired from cannabis? How does a claims adjuster know whether cannabis should be accounted for in a liability decision?

This article will discuss why medical cannabis creates difficulty with setting a legal limit for driving, what the current laws are in Illinois related to medical cannabis and DUIs, and considerations for handling a claim that involves a medical cannabis patient.

II. WHAT IS MEDICAL CANNABIS

Medical cannabis is harvested from the cannabis plant and is commonly referred to as marijuana.1 The cannabis plant contains a number of significant chemical compounds called cannabinoids. Two of the most popular cannabinoids are delta-9 tetrahydrocannabinol (THC) and cannabidiol (CBD).2

Most notable about THC and CBD is that consumption of THC produces a psychoactive or euphoric effect, while the consumption of CBD produces a nonpsychoactive effect. Id. Users can find medical cannabis products of varying degrees of THC and CBD in cannabis dispensaries, although the trend in the medical cannabis industry is to produce more medical cannabis products with high CBD, low THC content. In other words, it is possible to consume medical cannabis and not get “high” if consuming a medical cannabis product that is primarily CBD. For example, the cannabis oil provided to children who suffer from epilepsy, commonly referred to as Charlotte’s Web, is a high CBD, low THC product that produces no psychoactive effect.3

1 See National Institute on Drug Abuse, What is Marijuana https://www.drugabuse.gov/publications/drugfacts/marijuana (last visited April 29, 2016). 2 Hanan, A. PhD, et al., Health Canada, Information for Health Care Professionals, Cannabis (marihuana, marijuana) and the cannabinoids, p. 11, available at http://www.hc-sc.gc.ca/dhp- mps/alt_formats/pdf/marihuana/med/infoprof-eng.pdf (last visited May 1, 2016). 3 See Pickert, K., Finally, Some Hard Science on Medical Marijuana for Epilepsy Patients, available at http://time.com/3264691/medical-marijauna-epilepsy-research-charlottes-web-study/ (last visited May 1, 2016).

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To that end, studies are being done to assess the impact of varying CBD and THC levels for certain medical conditions.4 For many, the desire is for patients to be able to consume cannabis and receive all the medicinal benefits available without getting “high.”

For those that consume medical cannabis products with THC, any “high” is likely limited to about two hours.5 Notably, THC metabolizes differently than alcohol. If THC is consumed, it is immediately taken up by fat cells and can be metabolized into hydroxy-THC (H-THC) and carboxy-THC (THC-COOH). While H-THC is an active metabolite that may indicate intoxication, THC-COOH is an inactive metabolite that does not indicate intoxication or impairment. THC- COOH remains in one’s system longer than its counterpart H-THC – possibly as long as 30 days. According to the National Highway Traffic Safety Administration, “[i]t is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations.”6

In summary, not all medical cannabis causes the consumer to experience a “high” or become impaired. If THC is consumed and causes an impairing effect, evidence of its consumption can remain in the system long after the “high” or impairing effect has worn off.

III. ILLINOIS LAWS

In 2013, former Illinois Governor Quinn signed into law the Compassionate Use of Medical Cannabis Pilot Program Act (Compassionate Use Act), which forced the legislature to rethink the state’s approach to cannabis and DUIs under 625 ILCS 5/11-501 (the DUI Law).

A. Compassionate Use Act

Effective January 1, 2014, the Compassionate Use Act legalized the purchase, possession, and use of medical cannabis by qualifying patients who have registered with the Illinois Department of Public Health (IDPH). In order to be a qualifying patient, an individual must be diagnosed with one of the following debilitating medical conditions:

4 See e.g., Gallily, R., Yekhtin, Z. and Hanus, L.O. Overcoming the Bell-Shaped Dose-Response of Cannabidiol by Using Cannabis Extract Enriched in Cannabidiol, Pharmacology & Pharmacy, 2015, 6 (2): 75-85; Corey- Bloom, J. et al., Smoked cannabis for spasticity in multiple sclerosis: a randomized, placebo-controlled trial, CMAJ, 2012, Jul 10, 184 (10): 1143-50. 5 See National Highway Traffic Safety Administration, Drugs and Human Performance Fact Sheets: Cannabis/Marijuana, http://www.nhtsa.gov/people/injury/research/job185drugs/cannabis.htm (last visited May 1, 2016). 6 Id. See also Cary, P., The Marijuana Detection Window: Determining the Length of Time Cannabinoids will Remain Detectable in Urine Following Smoking, National Drug Court Institute, April 2006, Vol. IV, No. 2.

C-4 Cancer Glaucoma HIV Positive AIDS

Hepatitis-C Fibrous Dysplasia Crohn’s Disease Spinal Cord Injury

Multiple Sclerosis Muscular Dystrophy Severe Fibromyalgia Spinal Cord Disease

Arachnoiditis Tarlov Cysts Hydromyelia Syringomyelia

Rheumatoid Arthritis Amyotrophic Lateral Agitation of Spinocerebellar Ataxia Sclerosis Alzheimer’s Disease (SCA)

Cachexia/Wasting Arnold-Chiari Traumatic Brain Injury Chronic Inflammatory Syndrome Malformation and and Post Concussion Demyelinating Syringomyelia Syndrome Polyneuropathy

Tourette’s Myoclonus Dystonia Causalgia

RSD (CRPS Type I) CRPS (CRPS Type II) Neurofibromatosis Parkinson’s

Sjogren’s Syndrome Nail-patella Interstitial Cystitis Myasthenia Gravis Syndrome

Hydrocephalus Lupus Residual Limb Pain Seizures

410 ILCS 130/10(h) & (t).

Two times per year, the IDPH must review petitions for the addition of new medical conditions and make a decision as to whether any new medical conditions will be added to the above list of debilitating medical conditions for which patients may become registered qualifying patients. See 410 ILCS 130/45; 77 Ill. Admin. Code 946.30.

Registered qualifying patients are limited to purchasing and possessing 2.5 ounces of medical cannabis every 14 days. 410 ILCS 130/25(a). Where a physician has a substantial medical basis for doing so, a physician can sign a waiver for a patient that allows him or her to purchase and possess more than the 2.5 ounce-limit. 410 ILCS 130/10(a)(2).

B. DUI Law

Prior to the legalization of medical cannabis in Illinois, an individual found with any amount of cannabis in his or her system could be convicted of a DUI. Specifically, section 11-501(a)(6) provided:

A person shall not drive or be in actual physical control of any vehicle within this State while: . . .

C-5 (6) there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act . . . .

625 ILCS 5/11-501(a)(6). The Illinois Supreme Court upheld this section of the DUI Law in People v. Fate, where it acknowledged:

The statute in question creates an absolute bar against driving a motor vehicle following the illegal ingestion of any cannabis or controlled substance. This is without regard to physical impairment. Given the vast number of contraband drugs, the difficulties in measuring the concentration of these drugs with precision from blood and urine samples and, finally, the variation in impairment from drug to drug and from person to person, we believe that the statute constitutes a reasonable exercise of the police power of the State in the interest of safe streets and highways.

People v. Fate, 159 Ill. 2d 267, 271 (1994).

After passage of the Compassionate Use Act, section 11-501(a)(6) of the DUI Law was modified to provide that it “does not apply to the lawful consumption of cannabis by a qualifying patient licensed under the [Compassionate Use Act] who is in possession of a valid registry card issued under that Act, unless that person is impaired by the use of cannabis.” 625 ILCS 5/11-501(a)(6). In other words, the DUI Law makes an exception for registered qualifying patients such that the presence of cannabis in a patient’s system, alone, is not enough for that person to be charged with a DUI. A registered qualifying patient does not violate the law by driving unless he or she is actually impaired.

If a patient does have cannabis in his or her system and demonstrates impairment, then the DUI Law provides:

The fact that any person charged with violating this Section is or has been legally entitled to use alcohol, cannabis under the [Compassionate Use Act], other drug or drugs, or intoxicating compound or compounds, or any combination thereof, shall not constitute a defense against any charge of violating this Section.

625 ILCS 5/11-501(b). Notably, the DUI Law remains unchanged for those who are not registered qualifying patients.

But how is a police officer to determine whether a patient is in fact impaired from cannabis? According to the DUI Law, standardized field sobriety tests may be used.

Law enforcement officials may use standardized field sobriety tests approved by the National Highway Traffic Safety Administration when conducting investigations of a violation of Section 11-501 or similar local ordinance by

C-6 drivers suspected of driving under the influence of cannabis. The General Assembly finds that standardized field sobriety tests approved by the National Highway Traffic Safety Administration are divided attention tasks that are intended to determine if a person is under the influence of cannabis. The purpose of these tests is to determine the effect of the use of cannabis on a person's capacity to think and act with ordinary care and therefore operate a motor vehicle safely. Therefore, the results of these standardized field sobriety tests, appropriately administered, shall be admissible in the trial of any civil or criminal action or proceeding arising out of an arrest for a cannabis-related offense . . . .

625 ILCS 5/11-501.2(a-5). Courts have ruled that only those law enforcement officers who are qualified as drug recognition experts may testify as to drug impairment. People v. Briseno, 343 Ill. App. 3d 953 (1st Dist. 2003). Special training is required in order for an officer to be considered a drug recognition expert.

IV. IMPACT ON CLAIMS HANDLING

Unsurprisingly, Colorado, a state with over 100,000 active medical cannabis patients, has reported an increase in driving under the influence of cannabis cases and fatal motor vehicle crashes with cannabis-only drivers.7 Presently there are approximately 5,600 registered qualifying patients in Illinois. This number is expected to continue to increase in the coming months, especially in the event the IDPH adds more debilitating medical conditions to the Compassionate Use Act. As Illinois sees more medical cannabis patients, claims adjusters can expect more claims involving drivers impaired or under the influence of cannabis within the state. Proving that impairment for registered qualifying patients, though, will be an issue.

Some states have tried to address the impairment issue by setting a legal limit similar to the BAC limit set for alcohol. For example, Washington, Montana, and Colorado have set the legal limit for THC in a driver’s system at 5 ng/ML of blood, while Nevada’s and Ohio’s legal limits are 2 ng/ML and Pennsylvania’s legal limit is 1 ng/ML. In other words, if the driver’s THC levels measure at or more than the legal limit, the driver is legally presumed to be impaired in that state.

On the other hand, a study published last year by Forensic Science International found that 9 out of 21 cannabis users tested above 5 ng/ML for THC 24 hours after consumption, while 2 of those 21 subjects still tested at 5 ng/ML for THC 5 days after consumption.8 As more studies on

7 Halsey III, Ashley, Legalized marijuana cited for increase in drugged driving accidents, Chicago Tribune, available at http://www.chicagotribune.com/classified/automotive/ct-legalized-marijuana-drugged- driving-accidents-20150930-story.html (last visited May 1, 2016). 8 Odell, M.S., et al., Residual cannabis levels in blood, urine and oral fluid following heavy cannabis use, Forensic Science International, 2015, Apr, 249, 173-180.

C-7 cannabis and impairment are completed, state laws that set a legal limit such as those laws in Washington, Montana, and others may be susceptible to challenges.

In one case out of Arizona, a driver was charged with DUI where the driver tested positive for carboxy-THC (or THC-COOH) and Arizona’s law prohibited driving while any drug “metabolite” is in a person’s body. Montgomery v. Harris, 234 Ariz. 343 (2014). There, the state’s own expert witness testified that:

(1) marijuana has "many, many metabolites," (2) Hydroxy-THC and Carboxy-THC are the two major marijuana metabolites, (3) although it is possible to test for Hydroxy-THC in the blood, the Arizona Department of Public Safety chooses not to do so because Hydroxy-THC does not ”exist in the blood for very long” and is quickly converted to Carboxy-THC, (4) Carboxy-THC is inactive and does not cause impairment, and (5) Carboxy-THC can remain in a person's body for as many as twenty-eight to thirty days after the ingestion of marijuana.

Montgomery, 234 Ariz. at 343-44.

Criticizing the state’s position, the Arizona Supreme Court called it “absurd” that the Arizona law could potentially cause a medical cannabis patient to be prosecuted for driving with THC-COOH in his or her system given that it remains in a driver’s system as many as 28-30 days after ingestion. Id. at 346. The Court noted Arizona’s DUI law is intended to prevent and punish impaired driving, but “unlike alcohol, there is no generally applicable concentration that can be identified as an indicator for [cannabis].” Id. at 347. Ultimately, the Court ruled that the presence of a non-impairing metabolite was not enough to consider someone driving while impaired and ordered the charge be dismissed. Id. at 347-48.

In conclusion, much debate continues as to what is the appropriate legal limit for cannabis in a driver’s system, what cannabinoid may be relied on in testing impairment, and moreover, whether setting a legal limit for cannabis similar to alcohol is appropriate at all. The law is rapidly developing as to cannabis, impairment, and driving, which creates even more uncertainty for claims adjusters who are undoubtedly faced with a future of increased claims involving a driver with cannabis in his or her system. Consequently, claims adjusters should consider consulting with counsel knowledgeable as to current cannabis laws and studies when presented with a claim where cannabis use is indicated.

C-8 Stacy E. Crabtree

- Associate

Stacy focuses her practice on commercial and Sanctionable," Illinois Defense Counsel governmental transactions and litigation. Stacy assists Quarterly (2015) her clients with the negotiation and drafting of a wide  "I have to Pay a Volunteer What? Liability to range of contracts including purchasing, consulting, Volunteers under the Fair Labor Standards Act," equipment finance, and license agreements, and she Heyl Royster Business and Commercial also assists her clients with corporate organization, Litigation Newsletter (2015) governance, and compliance issues. Her clients range  "Preserving Error For Appeal" chapter in Civil from large to small businesses, non-profits and local Appeals (Illinois): State and Federal 2015, Illinois units of government. Stacy regularly works onsite with Institute for Continuing Legal Education a Fortune 50 company assisting its in-house counsel  "Right to Substitution of Judge in Newly Filed with vendor agreements including cloud service, Case Unavailable Where Counsel Previously consulting, and software license agreements, and 'Tested the Waters,'" Illinois Defense Counsel open-source software and freeware compliance Quarterly (2015) issues. The company has touted the relationship as  "Payment of Attorney's Fees on Behalf of helping it actually lower the company's legal costs Employees Remains Discretionary for Local while increasing its efficiencies. In the public sector, Public Entities under the Tort Immunity Act Stacy has served as general counsel to local Despite Collective Bargaining Agreement," governmental entities and represented governmental Illinois Defense Counsel Quarterly (2015) entities in various contract disputes. Stacy also has  "When Employers Become Human Traffickers: experience with school districts, focusing primarily on An Overview of the Trafficking Victims' special education law and due process. Protection Act," Illinois Defense Counsel Quarterly (2014) Prior to attending law school, Stacy worked for a  "Sender Beware: How Your Emails or Letters major insurance company for three years in auto may be Ruled a Binding Contract," Heyl Royster claims and then commercial underwriting. During law Business and Commercial Litigation Newsletter school, Stacy served as a law clerk for United States (2014) District Court Judge Timothy J. Corrigan and interned  "FOIA Update: When Texts and Emails on Your with the United States Attorney's Office for the Middle Cell Phone or Tablet Become Public Records," District of Florida. Stacy also participated on the Heyl Royster Governmental Newsletter (2014) school's Mock Trial team and was an editor for the  "Contract Considerations Before Sharing Florida Coastal Law Review. Stacy started her career Company Information with Third Parties," Heyl with Heyl Royster in the summer of 2010 as a law Royster Business and Commercial Litigation clerk and then joined the firm full time as an associate Newsletter (2013) in February 2011.  “New Laws for the New Year," Heyl Royster Governmental Newsletter (2013) Publications  "You Paid for It, But You Didn't Buy It: The  "Supreme Court Holds Zoo Does Not Qualify as Question of Website Ownership," Heyl Royster a Public Entity Under Tort Immunity Act Business & Commercial Litigation Newsletter Despite Relationship with Forest Preserve (2013) District," Illinois Defense Counsel Quarterly  "Religious Symbols in Cemeteries: When (2016) Cemetery Decorations Cross the Line of  "Error in Denial of Substitution of Judge Voids Constitutional Violations," Heyl Royster all Subsequent Court Orders," Illinois Defense Governmental Newsletter (2012) Counsel Quarterly (2015)  "Snow Removal, Tort Immunity, and the ADA,"  "City Council Committee Members' Settlement Heyl Royster Governmental Newsletter (2012) in Front of Judge Unenforceable but

C-9 Learn more about our speakers at www.heylroyster.com Public Speaking  “Website Liability and Requirements for Schools”  “Medical Cannabis: A New Healthcare Marshall, Putnam, and Woodford Counties Alternative of Illinois Patients” Superintendents’ Meeting (2012) Peoria Medical Society (2016)  “Corruption in Local Government and Duties of  “Medical Cannabis and Public Employers’ Officials to Prevent and Detect” Rights” Heyl Royster Governmental Seminar (2012) Illinois Association of County Officials (2016)  “Website Related Liabilities, Losses, & Insurance  “Medical Cannabis & Product Liability” Issues” Illinois Institute for Continuing Legal Education Heyl Royster Business & Commercial Litigation Webinar (2016) Seminar (2012)  “#Claims: What Adjusters Need to Know about  “Understanding Open Source Software Legal Social Media” Risks” Greater Peoria Claims Association Meeting Caterpillar Engineering Group Meeting (2012) (2016)  “Volunteers: Opportunity or Trouble?” Professional Recognition IAPD/IPRA "Soaring to New Heights" Conference  Named to the Leading Lawyers Emerging (2016) Lawyers list (2015, 2016). Only 2 percent of  “Liability as an Exhibitor and as a Donee” Illinois lawyers under the age of 40 or who Illinois Association of Museums Annual have been licensed to practice for 10 years or Conference (2015) less earn this distinction.  “Medical Marijuana: Legal Update and Property  40 Leaders Under Forty 2014 - Selected by Insurance Coverage Considerations” InterBusiness Issues magazine Heyl Royster 30th Annual Claims Seminar (2015)  “Recent Developments in Advertising and E- Professional Associations Commerce”  American Bar Association Peoria AdClub Meeting (2015)  Illinois State Bar Association  “Legal Considerations for Nonprofits Taking on  Peoria County Bar Association (Continuing New Roles” Legal Education Committee, Chair 2015- Illinois Main Street Conference (2015) present; Special Committee on Mentoring,  “When In-House Counsel and Ethics Collide” Chair 2014-2015) Caterpillar Legal Services Division (2015)  Greater Peoria Claims Association (Board of  “Medical Cannabis: A Primer For Employers and Directors, 2013-present) Governmental Entities”  Illinois Association of Defense Trial Counsel Heyl Royster Lunch & Learn Seminar/Webinar (IDC Quarterly Recent Decisions columnist) (2014)  Illinois Association of Museums (MuseNews  “Risky Business of Accepting Credit Cards” contributor) Heyl Royster Business & Commercial Litigation  Illinois Women in Cannabis Seminar (2013)  “Social Media and Healthcare Professionals: Court Admissions Appropriate Uses versus Abuses”  State Courts of Illinois Crawford Memorial Hospital Physicians’ Group  United States District Court, Central District of (2013) Illinois  “Building Your Community's Future: Best  United States Bankruptcy Court, Central District Practices for Local Government Construction of Illinois Projects” Heyl Royster Governmental Seminar (2013) Education  “Business/Employee Record Retention and  Juris Doctor (summa cum laude), Florida Production: Strategies for Effective and Efficient Coastal School of Law, 2010 Record Retention”  Bachelor of Arts – Risk Management and Heyl Royster Business & Commercial Litigation Insurance (summa cum laude), Bradley Seminar (2013) University, 2005

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