The Preliminary Determinations in a DUI Investigation

Before determining if a driver is impaired, law enforcement officers must first determine whether the driver has a legal right to possess or consume marijuana at all. Prior to November 9, 2016, California drivers could only do so by the possession of a valid medical marijuana card. Now – with the legalization of recreational marijuana – any person in California may possess up to one ounce of marijuana or six plants. An officer who pulls over a California driver on suspicion of DUI must therefore first determine: (a) if there is marijuana in the vehicle, and (b) whether it exceeds the legal limit.

While Californians may have a right to possess marijuana, it is still illegal to drive with an open container of marijuana in the vehicle. According to the Sacramento Bee, this applies to any receptacles or marijuana products that are open, have previously been opened, or have a broken seal.

The Unclear Science of Marijuana Impairment

Once an officer clarifies the preliminary matters of possession, he or she must determine whether the driver has actually been impaired by marijuana use. This is an inexact process, because unlike alcohol, there is no scientific standard by which impairment can be definitely established for marijuana. The blood alcohol level of .08 has been correlated with the impairment of driving abilities, and this finding has been corroborated over decades of research data. No such level has been identified for marijuana.

In the absence of expanded funding and research for marijuana impairment, it falls to individual officers to determine whether a driver is impaired based upon simple observation. Cars.com reports on the findings of a safety panel assembled by the Governors Highway Safety Association and National Highway Traffic Safety Administration. Among other recommendations, this panel of thirty-seven experts advocated for detailed observations and notes from officers on the scene. They also recommended a field sobriety test for marijuana, to allow an officer to support his or her objective observations with subjective test results.

Of course, law enforcement officers are not the only people who can benefit from learning the signs of impairment. The panel recommended education for prosecutors, judges, and the public at large. Such training will enhance the efficacy of DUI prosecutions, and my increasing public awareness, reduce the number of prosecutions that become necessary.

Because there are not yet clear laws about driving while under the influence of marijuana, defendants can face serious penalties without scientific proof of impairment.

The Los Angeles Cannabis Law Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Pot Panel Recommends Highway Safety Measures, June 27, 2017, by Kelsey Mays, Cars.com

More Blog Entries:

Why Marijuana Sobriety Tests are So Unreliable, December 12, 2016, by Cannabis Law Group

The devices, the brainchild of an Oakland emergency room doctor and reserve police officer for the Alameda County Sheriff’s Office, are expected to be distributed nationally sometime next year.

During initial field tests, drivers who were spotted driving in an erratic fashion were pulled over by Alameda sheriff’s deputies – including the creator of the device – who then and those drivers voluntarily agreed to breathe into the contraption. Two individuals admitted to smoking the drug within a half hour before the traffic stop, and their breathalyzer readouts were reportedly much higher than for the other drivers. In other drivers who admitted to using in the last three hours, the device also tested positive for the presence of THC.

No one involved in the experiment was actually arrested, and officials say that wasn’t the goal – yet. Right now, they are in the testing phase to see how well it works. The sheriff’s office also said it wanted to educate those who were pulled over. Although there were no arrests made for marijuana impairment, those who tested positive were not allowed to continue driving and had to find another ride home. One drunk driver was arrested.

If the device proves effective and becomes widely used, it could prove a game-changer. That’s because right now, there is really no scientifically accepted method of testing for a marijuana high. Blood tests can show whether a person has consumed marijuana, but because the active ingredient stays in the human body for so long, there is no way to ascertain when the drug was actually consumed – a major factor in proving intoxication. Frequent users of the drug – including L.A. medical marijuana patients – are going to test positive for high levels of THC in their blood, even if they aren’t actually impaired.

Although none of the drivers stopped in this most round of testing had consumed edible marijuana recently, the creator of the device said it’s been tried on users who consumed both marijuana gummy bears and marijuana brownies, and was successful. It’s pretty well established that the high of edible marijuana is delayed, but it may be detectable on a person’s breath for a longer period of time.

Still, these devices still need to undergo a fair amount of testing. The creator conceded the need for more laboratory tests confirming the accuracy of the device, particularly as it relates to the level of the drug detected on a person’s breath. Law enforcement agencies are being recruited to help the company collect data on the road to determine whether these devices are accurate and feasible for regular use. The devices will be sent out to six different departments over the next six months.

Other companies are racing to come up with other kinds of technology. One proposal involves a fingertip sweat test.

Our medical marijuana attorneys are skeptical. The technology is newer. It hasn’t been thoroughly tested. We’re talking about potentially depriving people of their lives and livelihoods on the basis of what is essentially still an experiment.

If you have been arrested for marijuana DUI in L.A., we can help.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Pot Breathalyzer Hits the Street, Sept. 13, 2016, By Steven Nelson, U.S. News & World Report

More Blog Entries:

Report: California Arrested 500k People in 10 Years for Marijuana, Sept. 5, 2016, Marijuana DUI Defense Lawyer Blog