Marijuana and Trucking

J. Bradley Klepper
Attorney at Law

For this month’s article, I thought I would discuss something that nobody in the industry has addressed (place tongue firmly in cheek here). That is right! Marijuana and the Trucking industry.

Now before you all start jumping to conclusions about me, there are a few things you need to understand. First, I went to college in the 80s (read into that whatever you want). Second, I want our roads to be safe at all times and our industry’s drivers to be the safest on the road. With that in mind, I have no tolerance for drunk drivers, stoned drivers, distracted drivers or drivers who do not act or drive like a professional. Honestly, I just don’t.

So, with that being said, how do we reconcile the current state of the world in regard to recreation/medical marijuana usage and trucking? Quite simply, I am not sure we can. At least presently.

As background, and according to a recent ATRI report, 49.8% of the general population – and 41.4% percent of the truck drivers live in a state where recreational marijuana use is legal. These figures are up from 24.5% and 18.5% from 2019 – so the number is obviously increasing. In addition, and according to ATRI, 59% of Americans support both medical and recreational marijuana legalization while only 10% are opposed to any form of marijuana legalization.

However, marijuana is classified as a Schedule I drug. This classification includes heroin, ecstasy and LSD. This means that regardless of the state’s position, marijuana is prohibited by federal law. Since trucking is a heavily regulated industry this means that marijuana use is expressly prohibited, regardless of the state’s position. This creates a problem with enforcement of federal laws and presents numerous employment issues for carriers.

So where does this put us? I really am not sure. I think the growth of medical/recreational marijuana is going to continue and will continue to permeate our industry. The question becomes how we determine if a driver is operating while under the influence of marijuana.

As you know, every state has laws dealing with alcohol and drug impaired driving. But unlike the laws for drunk driving, the laws addressing driving while stoned vary substantially.

The two primary approaches are behavior based (think field sobriety test or test conducted by a “DRE”) and biology based. The biology-based test measures the concentration of THC in a driver’s blood. Three states have laws where anything greater than 0ng/ml shows impairment. Four states have limits of 5ng/ml while 10 other states use a positive metabolite test. However, in this test, metabolites could be present several weeks after use. In addition, some people may have a higher “tolerance” for marijuana than others. So, as you can see, there is no standard test to determine actual impairment resulting from marijuana use. However, many researchers believe that the behavioral approach to documenting impairment is the most promising solution.

With that in mind, I was recently at a conference and had a very interesting conversation with PJ Barclay, PJ is a South African who now lives in Edmonton Alberta, Canada. Apart from being a South African in the great white north, PJ leads the team at Impirica ( that have developed and commercialized a series of solutions that help the transportation, medical and law enforcement communities with validated solutions that actively measure the risk of impairment.

With specific reference to transportation, they have a cognitive screen called Vitals that actively measures a driver’s risk of impairment. This measurement of risk empowers decision makers to proactively respond to the identified risk. Vitals has been designed and validated in such a way that it engages the brain in the same way it would be during driving which provides a predictive metric of driving risk. While their Vitals cognitive screen has been scientifically validated to measure impairment risk associated with the use of cannabis, the screen itself is agnostic to cause meaning it focuses less on what the cause of impairment is and more on whether the driver is fit-for-duty. With performance being the focus instead of the cause, their screen has application beyond cannabis use and addresses the multitude of factors that could render a driver impaired. What I found most fascinating about the conversation is that Impirica’s solutions have already been validated and are currently in active use.

At the end of the day, I am not a scientist or cognitive researcher. Hell, I don’t even play one on TV. With that in mind, I don’t know if this is the answer to determining impairment. I just think that as recreational/medical marijuana use continues to expand we need to think outside the box and develop a roadside test that can accurately determine impairment. To that end, I applaud PJ and others who are working to make this happen.

In closing, I acknowledge that I have glossed over many facts related to marijuana use, testing, impairment and a million other things. There is just not enough space to cover every issue in the space allowed.

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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