Right now it's impossible to accurately enforce stoned driving laws, because there is no roadside test that can determine whether a driver is actually high.
Which is why many of the people checking out the Cannabix Technologies booth at the Marijuana Investor Summit in Denver last month were thrilled. Here, finally, in a hotel ballroom littered with men in suits hawking useless apps and grow-house accessories, was a product with real potential: a marijuana breathalyzer.
As medical and recreational marijuana become legal in more and more places, the need for an easy way to determine whether someone is acutely stoned, meaning high at the moment of testing, has become all the more imperative. For example, although stoned driving numbers are not tracked nationally, Washington has reported a significant increase in drivers testing positive for THC since the state legalized marijuana in 2013. Cops need to know if drivers are too stoned to be on the road. People of color who get disproportionately pulled over for routine traffic stops need to know they won't just be arrested for a joint smoked the day before. Employers want to know if their workers are toking up on breaks.
Stoned driving was one of three top policy priorities identified by California's Blue Ribbon Commission on Marijuana Policy, a two-year study of the most pressing pot-related issues chaired by the state's lieutenant governor, Gavin Newsom. "This is a challenge that needs to be addressed—yesterday," Newsom told BuzzFeed News. "No one wants to share the road with an impaired driver, but it's happening every day and yet no tangible effort has been made to raise our understanding of measuring marijuana impairment to the same level as we have with alcohol impairment."
The quest for a pot breathalyzer is one almost everyone can get behind. The only problem is that no one has figured out how to make one that works. That's where companies like Cannabix come in.
Not everyone who came to Cannabix's booth believes a marijuana breathalyzer is even possible. Cannabix CEO Rav Mlait said he knew as soon as he saw the smirking man in red-framed glasses bounding toward him that self-described "cannabis expert and educator" Max Montrose would not be a potential investor.
"So tell me about this," Montrose commanded in a nasal baritone, gesturing to the table full of leaflets and the monitor playing a promotional video on repeat.
"Sure, sure, sure," Mlait said. A plodding, middle-aged Canadian in dark jeans and a light blue button-up, he began explaining that a few days earlier his company had released images of their alpha prototype, a pistol-like device with a plastic breathing tube where the barrel would be.
"I dig that. So let's move a little faster in this conversation," Montrose said. "So what about the fact that the science for cannabis DUIs is like, the most untrue, fucked-up shit you've ever seen?"
Mlait stammered the beginning of a response but then trailed off, unsure of how to handle this politely. Montrose was more than happy to keep talking. "Your product could send sober people to jail," he said.
Here's what Montrose was talking about: Unlike alcohol, which is water soluble and surges in the bloodstream as you get drunker and then disappears as you sober up, THC, the ingredient in marijuana that gets you high, is fat soluble and therefore can remain in the body for several weeks. In 16 states, anyone who smokes pot over the weekend could be drug tested on the way to work on Monday and automatically be found guilty of driving under the influence, without a trial. In the other 34, those arrested for drugged driving will at least get a chance to tell their story to a jury, but a positive result on a biological test is a difficult piece of evidence to argue against.
This is exactly the problem that Mlait and his business partner, Kal Malhi, say they are trying to solve. The breathalyzer their team is working on would, in theory, be able to determine whether someone has smoked, vaped, or digested THC in the past two hours.
Mlait and Malhi, a mustachioed former Royal Canadian Mounted Police officer, assume people like Montrose just want to be allowed to drive while high, so they try not to engage when critics inevitably approach. Besides, their product sells itself. Or at least, the idea behind their product sells itself.
For now, in most of the country, suspected stoned drivers must be brought in for blood tests. If the person being pulled over has just smoked pot for the first time in months, the marijuana metabolites in their system could be below the legal limit by the time they get to a lab a few hours later. If the person being pulled over gets high several times a week, the metabolites in their system will likely be above the legal limit, regardless of whether they were driving under the influence.
Some states have begun using cheek swabs and spit tests for quick roadside screening, because saliva doesn't retain THC as long as blood does. But even infrequent smokers can test positive a full day after the munchies and euphoria have subsided. Medical marijuana patients and stoners who light up daily have almost no chance of passing a saliva test, though not all test brands are reliably accurate.
When it comes to breath tests, Cannabix isn't the only option out there. Early last fall, the state of Colorado gave a drug and alcohol testing company called Lifeloc Technologies a $250,000 grant to develop a weed breathalyzer. Within two months, researchers at Washington State University announced they were also working on one.
Even though almost no one has ever seen the Cannabix breathalyzer in action, Malhi and Malit's regular stream of upbeat press releases imply they are the ones closest to a final product, so everyone wants in: law enforcement, employers, government agencies, parole officers, and, of course, investors. Malhi and Mlait started Cannabix Technologies last summer. Since then, their stock has gone from 5 cents to as high as 62 cents, and is currently trading around 28 cents a share.
Despite their clash with Montrose, Malhi and Mlait were in high demand at the Marijuana Investor Summit. A few hours before being confronted by Montrose, they ate breakfast with the head of HR from a major oil and gas company in Texas. And just before the two headed off to lunch with representatives from the Colorado Department of Transportation, an enthusiastic investor, Alaskan fisher Peter DeJongh, stopped by.
DeJongh bought Cannabix at 13 cents a share, and the only reason he came to Denver was to talk with Mlait and Malhi in person.
"Most of my investment is in the blue chips, but this is a speculative play that I thought I could get behind," DeJongh told BuzzFeed News. DeJongh was returning from visiting family in Texas, but with his Patagonia windbreaker, his silver Bluetooth earpiece, and his sunglasses dangling from croakies around his neck, he looked like he had just finished an afternoon trolling for salmon.
Because no biological test has ever been shown to accurately assess whether someone is acutely stoned, many cannabis activists believe that the search is fruitless, even if investors think they're going to see a big payoff someday. Colorado lawyer Judd Golden, who serves on the state board of the National Organization to Reform Marijuana Law (NORML) and spent nearly two decades running the ACLU in Boulder, said developing an accurate behavioral test would be a better use of time and money.
"They should care about being impaired, not fixate on whatever substance might be there," Golden said. "You could do functional tests, or tactile tests."
Within the marijuana community, many believe that driving stoned is just as safe as driving sober, and studies have in fact shown that people who smoke more frequently are more likely to be able to pass impairment tests while high.
Experts agree that drunk driving is a lot more dangerous than stoned driving. Although numbers vary from study to study, most researchers have found that driving under the influence of marijuana at most doubles the risk of an accident, while alcohol makes drivers between five and thirty times more likely to crash, depending on blood alcohol content. This past spring, the National Highway Traffic Safety Administration published the results of a rigorous, 20-month study in Virginia Beach, which found that drunk drivers were 6.75 times more likely to crash than sober drivers, and stoned drivers were 1.25 times more likely to crash.
But Marilyn Huestis, a senior investigator at the National Institute on Drug Abuse, said some studies have shown that residual THC continues to affect motor skills long after a person stops being high.
"Anyone with measurable THC in his system is twice as likely to have an accident. We've shown that frequent cannabis smokers have psychomotor impairment for more than three weeks after their last use," she told BuzzFeed News.
When asked whether patients who are prescribed medical marijuana and stoners in states where recreational use is legal should ever be allowed to use a car, Huestis sighed.
"It's a concern," she said. "How do you protect the other people on the road?"
Huestis also expressed serious reservations about the possibility of a marijuana breathalyzer hitting your local DUI checkpoint anytime soon. While research shows traces of cannabis will stay in the breath for two hours at most, the high can last much longer for some people, and even finding those traces can require precise instrumentation that is difficult to put in a portable device. Cannabix is basing their prototypes off of research done by Olof Beck, an adjunct professor in clinical pharmacology at the Karolinska Institute, a medical school in Sweden. But Huestis said that her own research on THC concentrations in breath was not matching up with Beck's, so she set out to figure out where the discrepancy was. When she visited his lab to see how he was able to determine recent marijuana use from breath alone, she discovered that most of his breath samples were contaminated with saliva, which retains higher concentrations of THC for much longer than breath does.
Back at the Marijuana Investor Summit, one of the weed world's most respected watchdogs, Alan Brochstein, approached the Cannabix CFO, who was manning the booth while Mlait and Malhi were at lunch.
Brochstein spent over three decades in finance before he noticed a handful of dubious pot stocks in 2013 and became obsessed with the new industry and its potential for fraud. As the Financial Industry Regulatory Authority has acknowledged, many publicly traded cannabis companies are scams, taking advantage of the buzz around legalization and the lack of transparency on over-the-counter (OTC) or penny stock markets.
Brochstein's 420 Investor news service provides advice, alerts, and updates on publicly traded marijuana companies to thousands of paid subscribers.
"So. You guys have a breathalyzer, but I don't know if it works. That's the magic question," Brochstein said, giving the Cannabix booth a wary once-over. "And why has your president been selling so much stock?"
The CFO doesn't miss a beat, explaining that Malhi needed to pay off some taxes. Brochstein narrowed his eyes and walked away. (Later, when asked to clarify, Malhi said he was paying himself back for money of his own that he had invested in the company.)
Brochstein later told BuzzFeed News that he doesn't usually support companies led by people who have run multiple penny-stock companies in a row, as Mlait had.
"They've been very promotional and getting out way in front of where they are," he said, about Cannabix. "I just don't think you should PR prototypes, frankly."
An hour later, when Mlait and Malhi return and hear that Brochstein came by, they are livid. He's had it out for them from the start, they complain, and he gives bad investment advice.
Soon a documentary film crew arrives, looking to set up a time to interview them and distracting from their frustration with Brochstein.
Once they leave, I asked if I could try this alpha prototype they've been talking about all day. I hadn't smoked marijuana for perhaps 18 hours at this point, but I almost certainly had enough accumulated THC in my system to test positive on any saliva or blood test, so I was curious to see what the Cannabix breathalyzer would say.
Malhi left to grab a few cartridges from the car, and Mlait told me about an issue they're still working out with THC molecules sticking to the plastic coating in the breath chamber.
When Malhi returned, I spent two minutes and 23 seconds laboriously blowing into the plastic tube attached to the device. Huff. Puff. Huff. Puff. Dizziness. Finally, I hit 100%. The test came up negative.
For a moment, I was impressed.
But then Malhi said, "So this won't test positive, because we don't have the components for a positive result."
I was a little woozy, so it took a little while for the reality of what had happened to sink in.
"What do you mean, you don't have the components for a positive result?" I asked.
"We don't have the internal mechanism that would test for a positive result," Malhi said.
"So…what was that just testing?"
"Right now? It's just testing a blank test."
"So…even if I had smoked an hour ago, it wouldn't know."
"No. Not right now. Not the way it is right now," Malhi said.
"Yeah, the way it is, there's certain components we left at home," Mlait added.
"The components that actually test for THC…you left at home," I repeated.
"We're just not ready to do that demonstration yet, with the alpha version," Malhi said. "Until we have it right, we don't want to be demonstrating it. That's why we need to go to a beta version, before we hand it out for testing."
Malhi and Mlait said they plan to have a beta prototype out by the end of 2015. But investors and states looking for a functional pot breathalyzer shouldn't hold their breath.