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House kills bill to allow eye tests for pot impairment

Deposit Photos/Syda Productions

Deposit Photos/Syda Productions

Unwilling to trust untested technology, state lawmakers voted Wednesday to block employers from firing workers based on their eye movements.

Current state labor law spells out the kinds of tests that companies can use to determine if current or prospective employees are impaired or under the influence of certain chemicals or alcohol. That includes testing urine, saliva, blood, breath, hair or “other substances from the person being tested.”

SB 1199 would amend that to include “eye movement data collected using software on an electronic device.”

What’s behind this bill is lobbying by the Zxerex Corp., a Scottsdale firm formed last year for the specific purpose of coming up with technology to determine marijuana impairment. Lobbyist Stuart Goodman, speaking to lawmakers last month, said there is a real need.

“There is lots of technology regarding presence, but not impairment,” he said.

There is a basis for eye-movement tests. Arizona law already allows trained police officers to use them to make a preliminary determination if someone is legally intoxicated on alcohol.

But even Goodman conceded that the eye movements involved in marijuana impairment are different — and far more subtle. In fact, he said, what Zxerex is researching is using a camera or smart phone linked to a computer to analyze these tiny movements which are invisible to the naked eye and then, using artificial intelligence, determine if someone is impaired by marijuana.

The technology, he conceded, is not quite ready, with an accuracy rate of just 90 percent. “So there’s still more testing going on,” Goodman said.

That current 10 percent error rate left some lawmakers uneasy about changing the law.

“Essentially, once again, we’re allowing the people of Arizona to be the guinea pigs,” said Rep. Mitzi Epstein, D-Tempe, the first time the measure was debated last month. And she said it appears that people who believe the results are inaccurate are left with one option: take the case to court.

“Well, most folks aren’t going to take it to court because they don’t have those kind of resources,” Epstein said.

Rep. Pamela Powers Hannley, D-Tucson, said the problem is even worse than that. She said there are no actual published research reports which show a correlation between changes in eye movement and marijuana impairment.

In fact, Powers Hannley, who works for the American Journal of Medicine, said the research that is out there shows the links that do exist include certain medical conditions like Alzheimer’s disease. The result, she said, is people could be fired for medical conditions.

But Rep. Jeff Weninger, R-Chandler, said there’s a good reason there are not independent, peer-reviewed studies.

“The research is proprietary,” Weninger said.

That explanation did not sit well with Rep. Randall Friese, D-Tucson.

“If you are asking this body to make a decision, don’t you think we should have access to all the data before we decide?”

Weninger, however, said legislators are not entitled to know everything, suggesting that demanding this research would be tantamount to having Coca-Cola release its secret formula. And he said foes of the bill are off base.

“It never ceases to amaze me the lengths we go to protect, I guess, somebody to be high,” he said. And Weninger said it’s wrong to worry about people losing a job.

“What about protecting employees and fellow employees from danger because somebody is impaired on the job?” Weninger said. “Where does the consideration to your fellow man or woman next to you and putting them in danger?”

Most of his colleagues did not see it that way, voting 34-24 to kill the measure.

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