Alaska State Troopers last week charged a Homer man for driving under the influence. That in itself isn't rare, but the nature of the alleged intoxication is: troopers claimed Paul Frary, 24, was under the influence of marijuana and nothing else. Also unusual is the time between when the incident happened, July 11, 2011, and when charges were filed.
According to a criminal complaint filed April 2, on July 11, 2011, Trooper Daniel Brom encountered Frary when Brom went to a single-car crash near Mile 165.1 Sterling Highway south of Anchor Point. Brom found a black Ford 350 pickup truck in the ditch that had crashed into a tree. He identified Frary as the driver. Emergency medical technicians were pulling Frary from the truck.
"Frary had incoherent speech and nothing could be made out from anything he tried to say," Brom wrote in the complaint.
Brom said he saw a pipe that smelled of burnt marijuana on the dashboard. EMTs took Frary to South Peninsula Hospital, where he consented to a blood draw. Troopers served a warrant on the blood and it tested 5.7 nanograms per milliliter for tetrahydrocannabinol, or THC, the psychoactive ingredient in marijuana, and 64.8 ng/mL of carboxy-THC. Carboxy-THC, while not intoxicating, can indicate recent marijuana use.
While Alaska law sets an intoxication level for alcohol at a blood-alcohol level of .08, the law doesn't set specific levels for marijuana. Alaska Statute 28.35.030(a), the law Frary was charged with violating, says a person commits the crime of driving under the influence if the driver operates a vehicle, watercraft or aircraft "while under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in combination."
Brom also found a second marijuana pipe that allegedly tested positive for about .2 grams of marijuana. Frary also was charged with sixth-degree misconduct involving a controlled substance.
Efforts to define intoxication
As states legalize marijuana, legislatures and citizens have debated legal limits for driving under the influence while high on pot. Under a ballot initiative last fall legalizing marijuana in Washington, the initiative allowing adults to possess up to 1 ounce of marijuana also made it a DUI if the THC content in a driver's blood is 5 nanograms per milliliter — less than the amount Frary allegedly tested.
The Colorado House of Representatives also recently passed a bill setting a legal limit for THC in a driver's bloodstream at that same number, 5 nanograms.
How much pot is that? The Washington ballot initiative legalizing marijuana, I-502, cited data from car crashes in Australia which indicated the risk of a crash rises when a driver is stoned at between 3.5 and 5 nanograms, wrote Johnathan Martin of the Seattle Times. Martin mentioned a federal study that said THC fell below 5 nanograms within hours of smoking a one-gram joint — but that was for government-grown pot.
The degree of intoxication with marijuana varies with the quality of pot and how it's consumed. According to the National Highway Safety Administration's "Drugs and Human Performance Fact Sheets," the average THC concentration in marijuana is 1 to 5 percent, hashish is 5 to 15 percent and hashish oil is 20 percent. Sinsemilla marijuana made from unpollinated female plants has a THC content of 17 percent. "Recreational doses are highly variable and users often titer (adjust) their own dose," the report notes.
Two years to file charges?
Trooper spokesperson Megan Peters said sometimes it takes time for defendants to be charged while an investigation is being completed.
"Are you going to just move forward with a case if you don't have all your ducks in a row?" she said. "Why rush it? Do a good job first and foremost."
As to why it took two years to file charges, Peters referred that question to the Kenai District Attorney, Scot Leaders. Leaders did not return a phone message or email message. seeking comment on the case.
Michael Armstrong is a staff writer for the Homer News, where this report was first publised. He can be reached at michael.armstrong(at)homernews.com