Special report, Pt. 3: High driving on High Desert

Right before the crash, a Bend woman remembered opening her eyes and seeing the tree right in front of her — she tried to brake and steer away, but it was too late.

Stacia Roberts, 23, survived the crash near Black Butte Ranch in 2010, but two of her passengers — her friends — did not.

Bend resident Joshua Herrin, 19, was killed in the wreck and Sisters resident Nina Blackmore, 18, died of her injuries in a hospital. Another teen in the car was hurt. Roberts plead guilty to manslaughter charges and was sentenced to six years in prison.

A blood test revealed Roberts had 59 nanograms per milliliter of marijuana THC in her system shortly after the crash. Police reports also show she had other controlled substances in her body and had been drinking earlier that night, although tests did not show alcohol in her system.

“It’s a tragedy when someone gets killed in a car accident when this is a totally preventable crash,” said Deschutes County Sheriff’s Lt. Chad Davis, who worked on the case. “That’s really tragic, because it’s about choices people make.”

It’s a deadly example of an accident fueled by several drugs, and while the vast majority of DUII arrests stem from alcohol, there’s worry more people will choose to mix marijuana with the wheel when the drug is legalized in July.

“I would be very worried,” said a Drug Recognition Expert (DRE) with the Deschutes County Sheriff’s Office. NewsChannel 21 is protecting his identity because of the nature of his work.

“I think there will be more high drivers on the road and people should be concerned,” he said.

In Deschutes County last year, 49 percent of all drug-impaired driving arrests involved marijuana as an exclusive or contributing factor. Statewide, it’s a little bit higher: 53 percent.

“The majority of people I see are impaired by cannabis,” the drug expert said.

Unlike alcohol, there’s no Breathalyzer to prove impairment. And Measure 91 does not establish a legal limit of marijuana consumption for drivers.

“There isn’t a type of science about how a body metabolizes drugs, as there is with alcohol,” the DRE said.

Area law enforcement agencies told NewsChannel 21 they’ll deal with marijuana impairment just as they’ve always done, relying on the expertise of their specially trained DREs to prove drugged driving.

“It’s more of a mental impairment,” the DRE said of high drivers. “They’re not able to make judgements or do divided attention tasks, like driving and watching what’s going on.”

Redmond Police Sgt. Curtis Chambers said officers look for both classic and more subtle signs when determining marijuana impairment.

“Dilated pupils, reddening of the whites of the eyes, body tremors, relaxed inhibitions,” he said.

Officers also conduct the standard field sobriety test and typically ask for a breath sample to rule out alcohol.

But backing up expert observations with science and technology is where marijuana impairment gets hazy.

Oregon state laws are set up to confirm proof in urine — the standard toxicology test for drugged-driving conducted by the Oregon State Police Crime Lab.

But toxicologists admit it doesn’t proved much.

“All it tells us is that person used marijuana at some point,” said OSP forensic scientist Lynn Howard. “There’s little correlation between the presence of this metabolite in the urine and actual impairment at the time the sample was collected.”

Many other states prefer and use blood toxicology to secure evidence in drugged-driving cases.

“Urine is not going to tell me the active components of cannabis are in a person like blood would,” said the DRE.

But blood also has its drawbacks. Unlike urine or breath, it’s more difficult for police to demand blood without a warrant. Getting a warrant can take hours, and in these cases, time is highly critical.

“The peak effects of marijuana is two to three hours for that euphoric high feeling,” Chambers said. “We would like to get the blood sample as soon as possible.”

Since police can’t send these blood samples to the state crime lab, they need outside help to test it. Redmond police send blood samples to Idaho State Police. The Deschutes County Sheriff’s Office has blood analyzed by a private lab and pays for results out of pocket.

“It would strictly be my opinion, but I’d rather see blood than urine,” said the county DRE. “We’re one of the last few states that uses urine toxicology.”

That challenge, among others, sent the state’s top DUII prosecutor, Deena Ryerson, to testify before lawmakers recently in Salem.

“You can use marijuana, and 30 days later it will still come up in the urine,” Ryerson said in her testimony before a joint committee on Measure 91. “So that’s a very limited tool that prosecutors have.”

Ryerson, who works for the Oregon Department of Justice, told NewsChannel 21 in a phone interview that blood tests outweigh urine samples in court.

“Absolutely,” Ryerson said. “It shows that the drug is likely active in their body at the time.”

Local prosecutors said sometimes relying on the observations and opinions of an officer aren’t enough for a jury that likes legal limits and hard facts.

“No doubt, it makes it more difficult to prove,” said Deschutes County District Attorney John Hummel. “The more cases that we have that are difficult to prove, the less cases we’ll obtain convictions on.”

Still, Hummel is not convinced Oregon will see more high drivers. The latest data from OSP shows marijuana contributed to just 4.5 percent of all Oregon DUIIs in 2012. And even then, the statistics aren’t perfect.

OSP’s Drug Recognition Expert Program coordinator, Sgt. Evan Sether, told NewsChannel 21 there are caveats to the data, like the fact that some DUII offenders impaired by multiple drugs are only charged with an alcohol DUII.

While nobody knows for certain what will happen after July 1, we can look to other states already rolling out some numbers.

The Colorado State Patrol recently released its first marijuana DUI/DUID report. It shows marijuana contributed to 18.5 percent of all impaired driving cases last year.

In Washington state, troopers report high driving appears to be on the rise — up from 2.4 percent of all DUI arrests in 2010 to more than double that last year.

Washington State Patrol spokesman Robert Calkins said it’s likely too soon to say whether the data reflects more high drivers, or increased efforts to catch offenders.

Back in Central Oregon, officers believe tougher enforcement will be critical.

“We’re going to have to rely on (drug recognition experts) even more after July 1,” Chambers said.

Sether, who also testified before the Measure 91 committee, said it’s difficult to predict what resources will be needed.

“There’s a possibility that there will be an impact, in terms of we’ll need more DREs across the state,” Sether testified. “In certain geographical areas, we may have shortages, especially on the east side of the state.”

The Deschutes County Sheriff’s Office has plans to train another deputy as a DRE. The department also held a refresher course for deputies on signs of marijuana impairment.

“We all have to document our observations — what we see, hear and smell,” said the county DRE. “What it boils down to is, there is no magic test that will help us where they are in their impairment.”

Tech companies and universities across the United States and beyond are working to change that.

“People are definitely looking at all the different technologies that are coming out — oral-fluid testing, potentially a breath test for marijuana, ” Ryerson said. “I think it’s a matter of not jumping too soon, and seeing what’s out there and the research that supports that technology.”

Cannabix Technologies is a Canadian-based company testing a marijuana breath-test prototype.

“What the test does is capture your breath from your lungs, and if there’s THC, we collect that THC,” company President Kal Malhi said in a Skype interview from Vancouver, British Columbia.

But Malhi said the product only tells officers if THC is present — not how much a person consumed. He added that the test also only shows recent use.

“The lungs have been scientifically proven to eliminate ingested THC within two hours, so our test shows recent use and would give officers probable grounds to demand blood,” Malhi added.

In the case of Stacia Roberts’ 59 nanograms per milliliter results, sheriff’s Lt. Chad Davis said he couldn’t say whether that was too high to drive safely. He said all he knows is that she was impaired.

“I’m not sure, because in Oregon we’ve never really had to have that information, because there is no standard,” Davis said. “There’s no .08 (the legal blood-alcohol level for drunk driving) for marijuana. She was impaired, and that’s the key concept to grasp.”