If you get pulled over for a “Marijuana DUI” you should know there’s no established way to tell when a driver is impaired by marijuana.
No “Breathalyzer” for Marijuana Impairment
When a person is pulled over for suspected alcohol impairment, an officer will do a field sobriety test which usually includes a Breathalyzer. Blow over the legal limit and you’ll be taken in. While it’s a little more black and white for alcohol, there is no similar test for marijuana.
Testing for the presence of marijuana can be especially difficult because unlike Alcohol and other drugs, blood and urine tests can still detect Marijuana in a person’s blood stream several weeks after the drug has been consumed, making it impossible to determine if THC has been consumed within hours of driving.
So how do police test for THC impairment by drivers in California? They start with a field sobriety test. If you fail, that gives them probable cause to arrest you.
Marijuana Field Sobriety Test
If a California officer believes you are driving under the influence of Marijuana and pulls you over, their first course of action will usually be a field sobriety test.
A field sobriety test is a series of exercises administered by police during Marijuana DUI investigations to help determine if a driver is impaired. California law enforcement officials rely on field sobriety tests to determine whether or not to arrest a person who is suspected of driving under the influence.
There are different types of field sobriety tests used by California officers. The three “standardized” tests are the “horizontal gaze nystagmus test”, the “walk and turn test”, and the “one-leg stand.” We outline all of them below.
Horizontal Gaze Nystagmus Test
- This test is more commonly described as the “eye follow” test. The test is usually administered by an officer moving an object, usually their own finger, from side to side in front of a person’s face. The person will then follow the object with their eye. Officers use this as a way detecting an involuntary jerking of the eye associated with high levels of intoxication. A person’s eye will reportedly jerk naturally after being strained beyond a 45 degree angle. If the eye begins moving or jerking before getting to that 45 degrees, it can indicate that a driver is under the influence. CA police officers can reference this reaction as evidence.
- The National Highway Traffic and Safety Administration (NHTSA) estimates this tests is 77% reliable.
Walk and Turn Test
The walk and turn test, also known as “walk the line” is meant to split the suspects attention between physical and mental tasks. An officer administers this test by asking the suspect to “walk the line.” While observing if any of the following occur:
- Loss of balance
- Wrong number of steps
- Inability to stay on the line
- Breaks in walking
- Beginning before instructed
NHTSA estimates that this test is effective 68% of the time.
One Leg Stand Test
During the “one leg stand” an officer will instruct the suspect to raise his or her foot, hold still, count, and look down. This test is meant as another way to split a suspect’s attention. An officer may arrest the suspect if any of the following behaviors are observed:
- Putting foot down
NHTSA estimates that this test is effective 65% of the time.
Additional Test: Blood, Breath, Or Urine
In California, if an officer has probable cause to believe that you were driving under the influence, you will have to take at least a blood, breath, or urine test. This is part of California’s “implied consent” law which requires all drivers lawfully arrested for a DUI to submit to chemical testing to determine either blood alcohol concentration (BAC) or the amount of drugs in the person’s system.
A urine test is not common, but if officers are unable to administer a blood or breath test, you are required to take a urine test. California law generally allows the driver to choose between a blood or breath test. But if neither a blood or breath test is available, the driver must take a urine test. (People who have hemophilia or are taking anticoagulants for a heart condition cannot be required to take a blood test. They will instead need to submit to urine testing.)
For Marijuana, using blood, breath, or urine tests to determine whether a person is under the influence of THC at the time they were driving can be inaccurate and misleading because of the way marijuana reacts in the system. Because THC is held in your body’s fat, you can still test positively up to two weeks – or even longer – after using it. The tests are unable to determine whether Marijuana was consumed within the last few hours versus days or weeks prior to being pulled over.
New Saliva Drug Swab Test
Officers in Los Angeles are now using a third method of testing – using drug swabs at DUI checkpoints. The test is roughly eight minutes long and uses a person’s saliva to detect THC, crystal meth, methadone, cocaine, and several other prescription medications.
The accuracy of these tests is still unclear. The test works by detecting trace amounts of drugs in the suspect’ saliva, but there can be traces of some drugs in your saliva up to three days after consuming them. This grey zone leaves plenty of room for doubt in a court room, as it would be nearly impossible to prove without a shadow of a doubt in a court room that a person was under the influence of Marijuana at the time they were driving solely based on a saliva drug swab.
For an arrest to be lawful and hold up in a courtroom, the officer who stops you must have probable cause to believe you are driving under the influence of alcohol or drugs.
An arresting officer is required by law to explain the consequences of refusing any of the above test methods. If you do not subject to a test, you’ll be fined, lose your license, and face jail time if convicted of a DUI. The officer must also explain you don’t have the right to speak to an attorney prior to taking the test and that a test refusal can be used against you in court.
What’s “Illegal” when Driving in California?
When driving in California, you should be aware of the fact that the following points are illegal:
- Drivers under the age of 21 are prohibited from transporting or carrying unsealed wine, liquor, or beer, in their vehicle if they are driving alone. Exceptions are if it is work-related.
- Drivers under the age of 21 are prohibited from driving with a blood alcohol concentration (“BAC”) of 0.01 or higher.
- Drivers under the are of 21 are prohibited from consuming any form of alcohol, including prescription drugs or cough syrup.
- Any driver or any age is prohibited from driving with a BAC of 0.08 or higher. A BAC of 0.08 is the standard measurement all states use in order to establish whether a driver is impaired.
- The driver of any vehicle requiring a commercial driver’s license is prohibited from driving with a BAC of 0.04 or higher.
- A driver under the age of 18 is prohibited from driving with ANY measurable BAC.
- Repeat offenders are prohibited from driving with a BAC of 0.01 or higher.
Although these laws are specific to California, the same DUI laws are similar in states throughout the United States.
Working with Sevens Legal, APC
If you are arrested and face a conviction for DUI, you need to work with a criminal defense lawyer such as Sevens Legal, APC. Once you have discussed the specifics of your cast with a Sevens Legal, APC, attorney they will let you know about your case’s strengths and weaknesses, as well as the punishment you may face and your risk of conviction. Your defense attorney will also be able to discuss any plea deal as well as whether it would be best to move forward to a trial, taking into consideration your best interests.
The criminal defense attorneys at Sevens Legal, APC, believe every client has a right to the best defense possible. Contact Sevens Legal, APC, today for a free consultation.
Criminal Defense Attorneys
3555 4th Ave.
San Diego, CA 92103
Phone: (619) 297-2800