Driving under the influence of any drug is never advisable. Still, most California cannabis DUI lawyers will tell you that a positive THC test on its own usually isn’t enough to build a criminal case against a driver. That’s because THC, the psychoactive compound in cannabis, not only stays in the system for a long time, it also intoxicates in small quantities. That makes it harder to detect than alcohol. Further, even a positive test showing high THC levels is a poor means of determining actual intoxication.
As our Los Angeles cannabis criminal defense lawyers can explain, the fact that someone tests positive for THC only shows that they used it at some point, but that could have been an hour ago, last night or last week. This has long been the bane of police and prosecutors in these cases, though some states have established arbitrary THC-blood concentration limits anyway.
Now, an Oakland business says they have a remedy. They are ramping up for the release of a new marijuana breathalyzer test that purportedly is able to nail down whether a motorist’s pot use occurred within a three-hour window. The company, Hound Labs is reportedly slated to start up a marijuana breathalyzer pilot program in Oklahoma, approved just last month by state lawmakers and the governor. California cities are eyeing the technology too.
The makers of this and other similar devices say it could also be used by employers who want to make sure their workers aren’t high on the job. This might be of particular interest to those who operate trucking, construction and warehousing operations.
Still, it’s not exactly clear how the device works and how accurate it is. While the program is still operating as a pilot, the THC concentration results won’t be admissible in court.
We do know that urine and hair samples, on which many companies and some prosecutors still rely, were designed some three decades ago. They can show that a worker or driver smoked marijuana at some point in the previous month, but they won’t show whether someone was impaired at the time of the test.
How Police Currently Test for Cannabis
Securing a conviction for cannabis-impaired driving has been problematic for California law enforcement officers since the 1960s, when marijuana swelled in popularity. Hound Labs reports that an estimated 15 million Americans have used cannabis within an hour of driving.
Yet most police in California don’t have a field test similar to an alcohol breathalyzer that can give them a swift, clear answer about whether someone is indeed intoxicated by marijuana. Instead, many departments rely on something called drug recognition officers (DREs). It takes special training to become a DRE, which teaches officers how to identify whether someone is impaired by drugs, legal or otherwise. Still, they are humans and they aren’t doctors or scientists. Errors happen.
Blood draws are a popular means of ascertaining what a driver has in their system, but it’s invasive and is also recognized as expensive and time-consuming for all involved. Thus, it’s often reserved only for serious offenses, in particular those involved with injurious or fatal crashes.
Some departments equip officers with cheek swabs to collect samples of saliva or hair sample testing kits. However, that’s still not a common practice and can be difficult to perform accurately on the roadside.
Absent a blood draw, urine sample or saliva draw – and the questions that can be raised about impairment – DRE officers themselves can testify quite effectively as expert witnesses. Still, some agencies insist a breathalyzer with sensitivity to marijuana impairment would be preferred in the field.
Difficulties in Building a Test for Marijuana Intoxication
Alcohol impairment devices are fairly effective in indicating whether someone is impaired. But the amount of THC in the body that can be intoxicating is 1 billion times less than the amount of alcohol it takes to make someone drunk.
Makes of pot breathalyzers have had to rely on pathologists and nanotechnologists who can study extremely small samples and know how to manipulate atoms and molecules.
Still, police in some areas say they aren’t eager to be the first on the bandwagon, preferring to wait and see how accurate it proves and whether any problems arise. Oklahoma, however, apparently isn’t waiting. Lawmakers in the state, which has legalized marijuana for medicinal use, approved a $300,000 expenditure to purchase, train and use the marijuana breathalyzer.
The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 714-937-2050.
Driving while stoned? Marijuana breathalyzers expected to hit the street in 2020, Sept. 12, 2019, By Jim Guy, The Fresno Bee
State may launch marijuana breathalyzer pilot program, May 20, 2020, By Carmen Forman, The Oklahoman