By WILLIAM FRANCIS
For some lawyers, there are few cases more rewarding than defending a person who has been accused of Driving Under the Influence of an Intoxicant -- especially when the intoxicant in question is marijuana.
Generally, the probability of prevailing in a Marijuana DUI case -- for some lawyers -- is relatively high.
This is because the police have devoted untold resources to developing tests and procedures to investigate drivers who are suspected of being under the influence of alcohol. The validity of these tests is questionable when police use them to try to establish that a person is "under the influence" of marijuana.
The Medical Methodology of Law EnforcementAs we all know, recreational marijuana use is legal in Oregon. However, driving under the influence of an intoxicant is not.
Police are still stopping, investigating and arresting drivers they suspect of being under the influence marijuana.
It makes little sense, but the procedures that police use to prove a driver is under the influence of marijuana are the same "standardized field sobriety tests" that police use to prove a driver is under the influence of alcohol.
Police are Trained as "Drug Recognition Evaluators"
After a DUI arrest, police administer a breath test. (It's significant that, in Oregon, a breath test is not administered before a DUI arrest.)
If the result of the breath test is below the presumptive limit of .08 percent breath alcohol, police are trained to interpret this information to mean that the level of alcohol is "inconsistent with the level of impairment observed." Their training also has them call in another police officer, known as a "drug recognition evaluator," or DRE. (Occasionally, an officer prefers to be called a drug recognition "expert.")
These police officers are not medically trained or certified. They are police officers who have received special police training in gathering evidence in a DUI case.
A DRE will take a driver who has been arrested for DUI through a long examination referred to as a "12-Step" protocol.
If a police suspect a driver has used marijuana (which frequently happens, because drivers who have used marijuana generally admit it), the DRE will administer a series of tests. These are supposed to prove that the person who admitted to using marijuana is somehow impaired by it.
At the end of the DRE testing, the police officer asks for a urine sample, which is sent to the Oregon State Police crime lab for analysis.
Cannabis Levels and Driving
Although the effects of marijuana are brief, the presence of metabolites will remain in a person's system for up to a month after use.
This usually means that police will be able to prove that a person used a legal substance, but not that the person was impaired at the time of driving.
Juries will understand that recent marijuana use does not automatically mean impairment at the time of driving. Likewise, the evidence police will offer in to prove impairment in a marijuana case is generally insufficient.
William Francis, Attorney
Continuing, Recent Legal Education in Marijuana and DUI
By WILLIAM FRANCIS
DUI Attorneys and Scientists Convene in Los Angeles to Share Expertise on Marijuana DUIs
“Cannabis and cars” was the topic at the January 2016 conference of the National College for DUI Defense in Los Angeles, convening at Marina Del Rey. The focus of the seminar was to educate DUI defense attorneys who represent drivers accused of impaired driving in cases involving cannabis and other drugs.
This was the first national seminar of DUI attorneys devoted entirely to the law and the scientific evidence of criminal charges that may be brought against drivers when they use marijuana, even in states where marijuana use is legal.
Attorney George Bianchi of Seattle, former president and a fellow of the NCDD, presented his paper on cannabis and cars. The work he authored is replete with a formidable library of recent scientific research and case law. Scientific and legal issues that are specific to the absorption and elimination of delta-9 tetrahydrocannabinol from the bloodstream are being raised in courtrooms throughout the United States.
The relationships of THC, impairment and driving ability are critical where the state brings criminal DUI charges. Bianchi stated, however, “There is no true understanding and agreement about the absorption and elimination of THC.”
And, although the main isomer and psychoactive constituent of marijuana remain active for a short time, studies have confirmed that metabolites of THC that have no psychoactive effect. However, these metabolites may remain in the system for 30 days or more. The presence of "11-nor-9 carboxy" delta-9 tetrahydrocannabinol may be offered to prove that a subject ingested THC at some time in the last month -- but it doesn't prove (or tend to prove) that a person is presently impaired.
In 2014, Bianchi asked for help in his THC research from Ted Vosk. Bianchi asked Vosk to review 23 articles that related marijuana impairment to specific THC levels.
Vosk completed the review and of the 23 articles found only four that seemed to advance some sort of per se level of impairment for THC. (Two other articles promoted zero tolerance.)
Bianchi wrote about tests in 2014 involving drivers who had consumed both alcohol and marijuana. Subjects gave blood and saliva samples as they took driving tests on simulators. Scientists concluded that they had observed something they called “lateral position lane weave.” They got excited about factors such as "steering angle," "lane departures" and "minimum and maximum lateral acceleration" with their "driving simulator."
The remainder of the study's conclusions set forth quantitative data about possible relationships between active, post-dose effects of THC with “minor lateral decrements” observed, which, one writer stated, “may be dangerous in narrow or winding roads.”
Lawyers should be watchful for “LPLW” to start showing up on police reports. It seems to have been a government agency that invented “lateral position lane weave,” and then devoted resources to studying it. I'm predicting that his term will likely be incorporated eventually into the “vehicle in motion” protocols of the typical marijuana-DUI investigation.
The standards for marijuana and driving currently are all over the place, depending on the state (meaning, the jurisdiction) you're in. But, in the meantime, police are being trained to continue to use the old, standard alcohol tests in looking for “clues” that a driver is “impaired” by marijuana.
In every presentation at this conference, it became clear that police and district attorneys nationally are staking out their positions on when, and at what levels, THC impairs driving ability.
In the meantime, in states where medical and recreational marijuana use is legal, marijuana users are getting DUIs.
And, in all states, drivers are getting DUIs where they have given a breath-estimate of their blood alcohol of less than .08 percent but provide some evidence that they also had used marijuana.
NCDD has over 2,000 members nationwide.