DUI MARIJUANA FAQ'S
DUI MARIJUANA: WHAT YOU NEED TO KNOW, DO'S AND DON'TS
Pot May Be Legal, But Driving High Isn't
On July 1, 2018, after a long struggle, Vermont became the first state to legalize marijuana by vote of the legislature, rather than by popular referendum. Citizens can possess up to an ounce of marijuana, and grow up to 6 marijuana plants "in a secure location", provided that only 2 out of the 6 plants can be mature at any one time. Also, if police see an unlit joint in your car, or smell marijuana, they do not automatically have probable cause to search you or your vehicle. Tip: never give police consent to search you or your car, and don't smoke pot in your car.
However, driving under the influence of marijuana, or any other controlled substance, remains illegal. Also, you cannot smoke pot while driving or if you have children in your car. Passengers are also forbidden from "lighting up". Tip: If you have pot in your car, store it out of sight in case you get stopped.
How DUI Marijuana Is Different From DUI Alcohol
It is much harder for the State to prove that you were driving under the influence of marijuana. This is true even though as with alcohol, the State only needs to prove beyond a reasonable doubt that the marijuana you ingested impaired your ability to drive "to the slightest degree". Nevertheless, Vermont law requires that expert testimony (usually provided by a specially trained and qualified police officer known as a Drug Recognition Evaluator or "D.R.E.") is necessary to prove that you are under the influence of pot, or some other drug, or a combination of alcohol and drugs.
The Vermont Supreme Court has said that since marijuana affects the body differently than alcohol, noting the difference in "symptoms" between someone who may be high versus under the influence of alcohol, only an expert witness is qualified to speak to that difference and to testify how, and to what extent, someone was high while driving. An expert witness is someone who has substantial skill, and/or who has received specialized training with significant experience in a particular discipline, concentration or subject matter. This means that a normally trained police officer is not legally competent to give an opinion whether a driver is under the influence of marijuana!
Conversely, in a DUI alcohol case, so long as the officer has received standardized DUI training in how to administer and "score" the roadside performance exercises, and how to operate the evidentiary breath testing machine, known as the DMT DataMaster, that officer can arrest and process a driver for DUI. The Courts have held that ordinary lay people, including police officers, may testify that a person is under the influence of alcohol provided they can identify the behaviors which confirm that opinion. Since the symptoms of alcohol impairment are widely known, someone does not need to be an expert in order to testify that based upon what they saw, heard, and smelled, the person was under the influence of alcohol. "... because it takes no special scientific knowledge or training to recognize intoxication". State v. Rifkin 140 Vt. 472, 476 (1981).
Applying these rules, several Vermont Judges have dismissed driving under the influence of marijuana cases where the officer who arrested and processed the driver did not have the specialized training required to determine that the accused was "high" when they were driving. This is true even though the person smelled of marijuana and showed the classic signs of being high such as bloodshot eyes, dry mouth, etc. The unanswered question is whether an officer who is not trained as a D.R.E. can have probable cause to arrest a driver for being under the influence of marijuana, without the help of a more highly trained drug officer. I do not believe this to be true, and I am currently litigating this very issue in a DUI Marijuana case.
ATTACKING THE DUI POT CASE
The Stop And The Exit Order
Be forewarned: you can be stopped for the slightest motor vehicle infraction or equipment violation. The officer only has to have an articulable and reasonable suspicion that you were driving unlawfully or had some type of equipment violation (most often an expired inspection sticker or a headlight, taillight or license plate light out) in order to stop you. A common police trick is to park near a bar or restaurant at closing time and then pull people over for failing to use a turn signal when leaving the parking lot, even if there are no other cars in the area! Tip: Always use your turn signal! If you were stopped for merely an equipment violation, that could undermine a later decision to arrest as, it could be argued that notwithstanding your alleged impairment, you drove normally.
Once you are stopped, you do not have to roll your window down all of the way! You are obligated to provide the officer with your license, insurance and registration. Tip: Say as little as possible! Never admit that you drank or smoked anything! Keeping your mouth shut and furnishing only the minimal information will make it harder for the officer to justify ordering you out of the car. Be polite! You have rights, too! If you have a cell phone handy, use it to record your interaction with the officer - but leave it on the seat or dash ...
The Roadside Exercises
After ordering you out of the car the arresting officer will have you perform the standard roadside exercises such as the Horizontal Gaze Nystagmus or eye test, the Walk and Turn exercise (walk 9 steps heel to toe, turn and walk 9 steps back) and the One Leg Stand exercise (stand on one leg, stretch the other leg out in front and count to 30). These exercises have not been widely accepted as accurate indicators of marijuana impairment!
If the officer has A.R.I.D.E. (Advanced Roadside Impaired Driving Enforcement training), the officer can perform additional exercises such as the convergence exercise (circling the your face with the index finger and then bringing the finger very close to the nose to see if the eyes cross or converge), and the Rhomberg exercise (stand with feet together, tilt the head back, close the eyes and count silently to 30). These last 2 exercises are also repeated as part of the Drug Recognition testing inside the police station. The arresting officer will request a roadside breath test or PBT to determine if there is alcohol in your system (if there is alcohol present this can complicates the decision whether you were driving under the influence of alcohol or of pot). There will be a police video recording of everything that is said and done on the side of the road.
Tip: You are not required to perform any of the roadside exercises, nor provide a preliminary breath test, nor to give any information other than identifying yourself and providing the necessary paperwork to the officer! I'm constantly amazed how many clients hurt themselves by readily agreeing to perform these roadside exercises, and to talk freely with police. There is no penalty for refusing to do these exercises or giving any additional information to police! The less the police have, the easier it is to successfully defend the case! Consider the trophy fish mounted on a plaque bearing the caption "If I Kept My Mouth Shut I Wouldn't Be Here Right Now"!
What Happens In The Police Station / The Drug Recognition "Evaluation"
As noted, only a trained Drug Recognition Evaluator (who will invariably refer to himself as an "Expert", which is a legal term only a Court can decide) can perform the Drug Recognition Evaluation. Here is what happens, as set forth in State v. Sampson 194 Or. App. 489, 493-495 (2000):
The D.R.E. protocol has three major functions. First, it attempts to determine the existence of impairment in a driver and to determine whether that impairment is caused by alcohol or drugs. Second, it asks whether the cause of the impairment is something other than alcohol or drugs, such as a medical condition. Third, if the impairment is caused by drugs, the D.R.E. protocol purports to identify which drug, among seven broad categories, covered the impairment.
A trained D.R.E. officer conducts the protocol, at the police station, after the arrest. According to the NHTSA (National Highway Traffic Safety Administration) D.R.E. training materials, the protocol consists of the following 12 steps:
- A breath alcohol content (B.A.C.) analysis is done. If the subject's B.A.C. exceeds 0.08 percent (the legal limit in Vermont), the D.R.E. protocol ends.
- The D.R.E. officer interviews the arresting officer to elicit information about the subject's behavioral and physical symptoms.
- The D.R.E. officer conducts a preliminary physical examination; he or she checks the subject's eyes for synchronization and pupil size, checks the pulse, and asks general health questions. This step determines whether the subject is impaired by a medical condition.
- The D.R.E. officer conducts four standard eye examinations developed to detect intoxication: horizontal gaze nystagmus (H.G.N.), vertical gaze nystagmus (V.G.N.), and lack of convergence (L.O.C.).
- The D.R.E. officer conducts four F.S.T.s: the Rhomberg balance test, the walk and turn test, the one leg stand test, and the finger to nose test.
- The D.R.E. officer checks the subject's pulse, blood pressure, and body temperature.
- The D.R.E. officer measures the subject's pupil size under three light conditions (near total darkness, indirect light, and direct light), and inspects the nose and mouth for signs of drug ingestion.
- The D.R.E. officer checks the subject's muscle tone for extreme flaccidity or rigidity.
- The D.R.E. officer inspects for injection sites.
- The D.R.E. officer conducts a focused interrogation and observation of the subject's behavior.
- Considering the results of all the foregoing procedures, the D.R.E. officer develops a formal opinion identifying the drug that the subject took.
- The D.R.E. officer obtains a (blood) sample for toxicological testing. The test is used to corroborate the D.R.E. officer's opinion and to provide a learning tool for the officer.
Attached is a checklist which the officer must follow in performing the D.R.E.
The first step at the police station is the reading of the Miranda Rights, which include advice about the right to remain silent and to speak with an attorney. Tip: Never waive the right to remain silent, and always ask to speak to an attorney! Doing so will prevent you giving "free" information to the police which will be used against you in Court! Keeping your mouth shut will also make it more difficult for the D.R.E. officer to determine whether you are under the influence of pot; the less information available to make that decision, the harder it will be for the State to defend the officer's opinion in Court.
Just as there is a benefit from refusing to perform the roadside sobriety exercises, there is no penalty for refusing to cooperate with the D.R.E. and not performing any of the exercises and to answer any questions set forth in Steps 1 through 10 of the D.R.E. protocol outlined above! Why give the police free information that will only be used against you? If you refuse to cooperate with the D.R.E. officer regarding steps 1 through 11 above, it makes it far more difficult for the D.R.E. to develop the probable cause necessary to request a blood sample!
Note that Step 12, whether to provide a blood sample, should only be decided after speaking with an attorney, whose help should always be requested! The attorney may likely suggest that you tell the D.R.E. that you want a search warrant before you provide a blood sample. A 2016 U.S. Supreme Court case holds that in a DUI case, a request for a blood sample must be preceded by a search warrant, unless the operator consents. You have a constitutional right to insist upon a search warrant, which requires the D.R.E. to prepare a written affidavit in support of the search warrant and an application for the warrant itself. These materials are forwarded to a Judge, who then must decide whether sufficient probable cause exists to issue a written order granting the warrant authorizing the police to obtain a blood sample.
Each of these steps must be followed in order for the D.R.E. officer to properly give an opinion of whether the driver was impaired, and if so by what substance, in order to furnish probable cause to request a blood sample.
The D.R.E. "Examination": Fair And Impartial Or Simply Confirmation Bias?
In performing the examination, the D.R.E. looks for symptoms particular to the substance the driver is believed to have ingested. Attached is a Drug Category Symptomology Chart: symptoms for cannabis are listed in the far right hand vertical column.
However, many of the "symptoms" of cannabis ingestion such as elevated pulse rate and elevated blood pressure, occur naturally to someone already under arrest for driving under the influence. For example, marked reddening of the conjunctiva, the membrane covering the front portion of the eyeball and lining the inner surface of the eyelid, can result from crying, exposure to cigarette smoke, or seasonal allergies. These are but several examples of false positives which are often mistaken for indicators of marijuana ingestion/impairment
In performing the examination, the D.R.E. fills out the Scoring Sheet which is attached.
The D.R.E. is taught to "dirty up" the evaluation form by emphasizing positive symptoms of ingestion/impairment, but omitting negative signs. A common physical "symptom" which the D.R.E. claims to indicate ingestion is that a driver who smoked marijuana has a "green tongue". However, there is no legal or scientific evidence that there is any connection between a green tongue and smoking marijuana!
My experience in defending DUI/Marijuana cases, which includes reviewing many video recordings of D.R.E. evaluations, is that the D.R.E. officer simply engages in "confirmation bias". This means that the D.R.E. has formed a pre-determined opinion regarding the motorist being under the influence of marijuana, based upon what he or she is told by the arresting officer, and then interprets the D.R.E. evaluation results to support that opinion. Certainly this falls far short of any valid "expert" opinion that the motorist was driving under the influence of marijuana. The D.R.E.'s credentials alone are not enough; bias and/or errors in interpreting symptoms of impairment, while discounting or ignoring indicators which contradict impairment, is common in drugged driving cases.
Did You Only Smoke - Or Are You High?
In a typical DUI alcohol case, the legal limit for the amount of alcohol in the body, whether measured from blood or breath, is 0.08%. A breath or blood test result at or above that limit - if the test result is within 2 hours of when you last drove - creates a permissive inference that you were under the influence of alcohol.
The body absorbs and eliminates alcohol in a manner and at a rate vastly different than marijuana. Vermont has not established a numerical level of impairment for marijuana. Instead, the laboratory performing the blood sample analysis reports whether the sample results fall above or below a particular concentration of THC (the active ingredient in pot causing the "high") in the blood. This presents the opportunity to argue that you were not impaired at all, but simply had a certain amount of THC in the bloodstream. This is particularly true if the driver uses medical marijuana, or if the pot was smoked hours before driving.
Vermont law requires the state to "present expert testimony to link (your) behavior (at the scene) to marijuana use, or to prove that the amount of marijuana that (you) used would render (you) unable to drive safely", State v. Cameron 2016 VT 134 ¶ 22. What if you were stopped only for an equipment violation? What if you smoked pot hours before driving, well after the peak affect of what you had smoked had been reached, and only had a "slight" buzz? What if you used medical marijuana for a chronic medical condition, i.e. therapeutic versus recreational use? What if you showed equivocal or mixed indicators of being high at the scene of a stop which raised doubt whether you were even stoned?
These are all factors that complicate a DUI Marijuana prosecution and which benefit the driver. It is also widely known, and supported by research, that stoned drivers are more careful drivers than a driver who is impaired by alcohol! This is because a stoned driver will compensate by being more attuned to his or her surroundings, driving conditions, etc. and react accordingly. Such an argument can be used to attack the State's case that a driver being stoned rendered him unable to drive safely.
DUI Marijuana cases are complicated and difficult to both defend and prosecute. However, as hopefully you have seen, it is winnable! There are many more factors to account for than in a "normal" DUI Alcohol case.
Final Tip: If you are under arrest for DUI Marijuana or DUI Drugs, or facing those charges, call me right away!
If you have any questions or are facing charges for Drug DUI, please call me today at: (877) 763-7144 or contact me through our contact us page.