In my last post I discussed how a police officer might go about establishing probable cause for arrest for DUI (driving under the influence) with a reasonable suspicion of drug involvement when you are pulled over. These include tactics such as roadside tests, asking questions and observing your demeanor and physicality.
Unlike alcohol, which studies have shown to impair human bodies at a certain and fairly consistent level (the current legal blood alcohol concentration limit for drinking and driving in most states is .08%), there is much research demonstrating that there is no “one size fits all” metric for determining impairment by marijuana.
Let me put it this way: it is not illegal to smoke marijuana and drive a car. It is illegal to be impaired/being under the influence by marijuana while driving a car.
At the moment, the law says that anything greater than five nanograms of THC per milliliter of blood automatically creates a rebuttable presumption that the driver is impaired by drugs. However, many studies show that this is not the case. Let’s look at why.
Different People Respond Differently
If you were to draw blood from a chronic user of marijuana (someone who partakes on a daily basis) and test it for THC content, you would more than likely find that there is a substantial amount of THC in their system. This person will likely have more than the legal limit of five nanograms of marijuana in their system; but does that mean that he or she is “impaired”? That is the big question. It’s possible/probable that they are not.
On the other hand, if someone who very rarely uses marijuana had five nanograms of THC per milliliter of blood in their system, they would almost certainly be more likely to be impaired.
The research shows us that there is not a good relationship between the amount of THC in your system and your ability to function. It’s more about the body’s tolerance.
Because of this discrepancy, citizens who are arrested for DUID marijuana and test positive may still be able to prove that they were not impaired — if they are regular users.
I heard about a case where a regular user of marijuana was pulled over for speeding. She was a young woman who used marijuana on a daily basis to manage chronic pain due to a previous back injury. When she was pulled over, the police report stated that smoke “billowed” out of her car. The officer asked her to do a roadside test, which she agreed to do.
The police report noted that the young woman had no trouble exiting her vehicle, but it also recited that she did poorly on the roadside test. Fortunately in this particular situation, there was dash cam footage that demonstrated that the woman performed fine on the roadside. When the judge saw this, she commented that her roadside test looked like the test of a sober person.
The police report also mentioned that the young woman’s eyes were consistent with impairment [HGN]. An expert witness was able to establish that marijuana does not cause those rapid eye movements (though other drugs can). In this case, the officer indicated she was only checking for marijuana impairment.
The young woman explained that she was driving faster than the speed limit in order to keep up with the flow of traffic, which typically drives about 10 mph faster than the posted speed limit on that road. In the end, the judge found that there was clear evidence that the woman had smoked, but there wasn’t any evidence that she was impaired. Without impairment, there was no probable cause for arrest, and with no probable cause for arrest, the test never should have been administered. Of course, the test demonstrated that the woman had 15 ng./ml. of THC in her blood, three (3) times the legal limit. However, the test was suppressed because there wasn’t probable cause.
The woman ended up pleading guilty to a speeding ticket, and that was all.
Please keep in mind that every case is different and there is no guarantee that your scenario will look like the young woman I just mentioned. However, if you have been arrested for DUID marijuana, call our office today at 303-449-1873 for a complimentary consultation.