As marijuana is growing increasingly acceptable– with several states and locales decriminalizing it, more passing medical marijuana legislation, and a few legalizing it altogether—cops are scrambling for a way to enforce “driving while high” laws. But as of yet, they simply don’t have a solid method of testing someone for being under the influence of marijuana. One Swedish-designed device is being touted as a potential solution, but it has (at least) one serious flaw.
When someone is suspected of drunk driving, they are given a breath test. If they refuse or if the police want further proof, they may get a warrant for a blood test. These tests indicate the concentration of alcohol within the person’s body. But, unlike alcohol, marijuana isn’t detected in the breath and its levels in the blood are not reliable.
Some compounds in marijuana stay active within the blood stream for weeks after you smoke. This means, the police may be able to detect that you’ve been using marijuana, but won’t know how long ago it was and therefore could arrest and charge you with DUI for a joint you smoked last week.
According to US News, the Swedish device can detect 12 different controlled substances, including marijuana and cocaine, for instance. The company behind the device is marketing it as the solution to drugged-driving detection difficulties and has released a study showing it was able to correctly identify substances in 47 patients at a “drug addiction emergency clinic.”
But, and here is the problem, the device (like the blood tests) doesn’t actually detect intoxication or how the drug has affected you, but merely identifies whether or not you’ve used it.
“Considering the samples were taken 24 hours after the intake of drugs, we were surprised to find that there was still a high detectability for most drugs,” said Olof Beck of Sweden’s Karolinska Institutet.
So, if the breath test can detect drugs taken at least 24 hours ago, how does that prove someone’s level of intoxication now? If I smoke a joint at 7 p.m., go to bed around 10 and wake up to do my normal routine. What happens if I get pulled over on my way home from work the next day at 5 p.m. and “blow hot” for marijuana on a cop’s breath test?
It’s easy to see how this testing method is flawed. After all, the crime is driving while under the influence. If you are no longer under the influence, you shouldn’t be charged. And especially in states where marijuana use has been legalized, smoking or having marijuana in your system is not a crime in and of itself. The Commonwealth has decriminalized marijuana possession in small amounts, and police
For now, police are “winging” it when it comes to arresting people for driving under the influence of drugs. Massachusetts courts are unlikely to accept evidence from a device like this. The courts have already concluded that roadside breath test devices are unscientific, and not admissible The only breath test number that is admissible is a high-end device most commonly used at police stations, with strict requirements for maintenance to maintain scientific validity.
But, as I have written, the number of arrests for Marijuana-DUI and other operating under the influence of drugs charges is only likely to increase.
If you are caught and charged with an offense like this, contact me today to discuss your legal options and how we might be able to help.