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 © 2016 Heyl, Royster, Voelker & Allen, P.C. C-1 THE TROUBLE WITH IMPAIRMENT IN A MEDICAL CANNABIS STATE 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). C-3 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