Prosecutor Pushes for Standards for Marijuana DUI

Apr 2, 2019

After losing a high-profile case involving a marijuana-smoking truck driver, the commonwealth’s attorney in Albemarle County has vowed to get some standards on the books for prosecuting people who may be impaired by pot. 

When 31-year-old Dana Naylor drove a garbage truck across railroad tracks in Crozet and was hit by an Amtrak train, prosecutor Robert Tracci believes he was under the influence of THC – the active ingredient in marijuana.

Virginia has no standard for convicting people if they drive under the influence of marijuana. Prosecutor Robert Tracci wants to change that.
Credit (AP Photo/Julio Cortez, File)

“Colorado has a THC impairment level of 5 nanograms per milliliter.  In this case the defendant had a THC level of 6.6 nanograms per milliliter five and a half hours after the crash,” he told RadioIQ.

But Virginia doesn’t have a standard for prosecuting those who smoke and drive –so when Naylor went on trial, the judge wouldn’t share information about THC levels with the jury, and Naylor was not convicted.

State legislators did try to enact a limit in 2006 -- the House of Delegates passed legislation 97 to 0.

The driver of a truck was not convicted in connection with this Amtrak collision in Crozet, perhaps because Virginia has no DUI standard for THC -- the active ingredient in marijuana.

The Senate didn’t vote, so the measure failed. Now, however, Tracci thinks it’s time to try again. He admits some people are impaired at certain levels of THC while others are not, but that’s also true of alcohol.

“Some people can be .08 or higher and not show signs of impairment.  Most people show signs of impairment, so you’re going to be presumed to be intoxicated at that level,” Tracci explains.

He’s been lobbying lawmakers and working with the association of commonwealth’s Attorneys and Mothers Against Drunk Driving to build support for a measure that could come up in the next legislative session.

Editor's note: After this story was broadcast, prosecutor Robert Tracci wrote to clarify:

The fundamental concern with this case is that the court dismissed the THC impaired maiming charge before it could be considered by the jury.  The judge ruled that scientific data linking THC to impairment was so unreliable that the jury should not be allowed to consider evidence from a forensic scientist who measured THC in the driver's blood. It is more accurate to say that I am seeking "a Virginia per se THC impairment standard" after the court, citing the unreliability of scientific data on THC impairment, dismissed the driving under the influence charge before it could be considered by the jury.