Articles Tagged with dui

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.

iStock_000006746569XSmall.jpgCritics often oppose marijuana legalization because of their concerns about drivers operating under the influence of marijuana. Intoxicated driving often carries with it harsh penalties. In Texas, a person’s first offense of driving while intoxicated (DWI) is a Class B Misdemeanor. The offender could face a fine of up to $2,000 and imprisonment ranging from 72 hours to 180 days. He may also have to complete community service varying from 24 hours to 100 hours. His license could be suspended and he would face a surcharge from DPS of $1,000 or $2,000 per year for three years. If one commits a second or third offense, the penalties rise dramatically and the offender could face 10 years in the penitentiary.

Now that Colorado has legalized marijuana use, Colorado legislators have devised a regulatory framework to guide law enforcement in dealing with marijuana DWI issues. The regulations allow law enforcement to administer a test to check for the blood content of THC (the psychoactive marijuana ingredient). If a driver has five nanograms of THC in her blood, she would be considered too impaired to drive and could be ticketed. If prosecutors charge a driver with having five nanograms of THC in their blood, the regulations allow the driver to rebut the allegation that she is too impaired to drive. It is interesting to note that in all prior failed marijuana DWI bills, if a driver tested above the legal five nanograms limit, the consequence would be an automatic conviction almost every time. Under the enacted marijuana DWI law however, there are no automatic convictions and the driver can argue even though he had five nanograms of THC in his blood, that he was still an unimpaired driver.

While law enforcement can use the finding of five nanograms of THC in an offender’s blood to prosecute the offender, the regulations prohibit prosecutors from using the fact that the offender is a medical marijuana user. If the offender possessed a valid medical marijuana registry ID card, which could indicate that the person is a regular user of marijuana, a prosecutor could not use that fact against an offender in the prosecutor’s case in chief. Before an officer can subject a driver to a marijuana blood test, the officer must have “probable cause” that the driver is impaired. Under Colorado’s regulations, an officer could not use the sole fact that a driver possesses a medical marijuana card to determine there is probable cause to subject a driver to a marijuana blood test.