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