Articles Posted in DWI

In September of 2016, police in California began an expansive field test of a new generation of marijuana intoxication detection technology. Similar to an alcohol breathalyzer, California is pioneering a new device designed to detect if the subject has ingested THC recently.[1] Built and distributed by Hound Labs[2], the unit is billed as a duel marijuana and alcohol breathalyzer. Feedback from law enforcement has proved positive.

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The development of technologies such as the hound highlight the growing need of a standardized and clear way to measure impairment in diving caused by marijuana. With twenty-nine states with robust medical marijuana programs, forty-four states with some form of medical marijuana, eight states with recreational marijuana, and six more states poised to vote in November 2018, the need to judge the intoxication of drivers on marijuana becomes more and more pressing.

Prior Technologies

iStock_000000350401XSmall.jpgOn the night of October 3, 2010, Tyler McNeely of Cape Girardeau, Missouri, was pulled over for speeding and swerving out of his lane. According to officer testimony, McNeely appeared unsteady and intoxicated, prompting the officer to attempt a breathalyzer test on him. After McNeely operated his constitutional right of refusal, the officer took him to a nearby hospital to have his blood drawn, which McNeely again refused. Ignoring McNeely’s explicit refusal, the officer directed a hospital lab technician to draw McNeely’s blood without his consent. At trial, McNeely contested the introduction of the blood sample, arguing that he had not consented, there was no warrant for the blood sample and no exception to the warrant requirement applied. The trial court agreed, suppressing the blood alcohol analysis after finding that there were no constraints that would have prevent the officer from obtaining a search warrant prior to drawing blood against McNeely’s will. Prosecutors appealed, and after Missouri’s highest court upheld the decision, the matter was brought before the U.S. Supreme Court.

In April 2013, the Supreme Court found that blood drawn during a DWI or DUI investigation without consent violates a defendant’s Fourth Amendment right against unreasonable search and seizure unless the government actors have obtained a warrant or an exception to the warrant requirement applies. Under the Fourth Amendment, for a search or seizure to be reasonable, the person must consent, the officer must produce a signed warrant or there must be an “exigent circumstance” such that if the officer took the time to obtain a proper warrant, the evidence or person to be searched or seized would be lost. In this case, the “exigent circumstance” was the “natural dissipation of alcohol in the bloodstream” as McNeely’s blood alcohol level would have naturally decreased with time. In effect, the Supreme Court held that a routine DWI stop is not enough to constitute an exigent circumstance or emergency, so blood cannot be taken without a valid warrant or the person’s consent. Examples of exigent circumstances include the need to: “provide emergency assistance to an occupant in a home,” “engage in hot pursuit of a fleeing suspect,” “enter a burning building to put out a fire and investigate its cause” and “to prevent the imminent destruction of evidence.” These are times when law enforcement requires neither consent nor a search warrant before taking action.

In light of the Supreme Court’s recent ruling, many are left wondering how the court will address implied consent as well as warrantless searches in DWI cases involving substances other than alcohol, such as marijuana. At the moment, the presence of true exigent circumstances allowing an officer to perform a warrantless search without the person’s permission during DWI cases must be determined on a case-by-case basis.