Marijuana is now legal in more than 30 states for medicinal purposes, giving patients with a variety of debilitating conditions the freedom to use it as a way to improve their lives. But one of the most common misconceptions is that being a medical marijuana cardholder provides a certain level of protection if a police officer happens to suspect that a patient is driving impaired. It doesn’t. In many cases, even if a patient isn’t actually high while they are behind the wheel, law enforcement can still find ways to drag them to jail and file charges for this offense.
Police departments have what is known as drug recognition experts (DRE) that are trained to detect when a motorist is impaired. These officers are supposedly proficient in determining when a motorist is under the influence of alcohol and other drugs. Identifying these culprits typically involves a 12-step DRE protocol, which can include a breath test, eye examination, analysis of vital signs, and just observing the behavior of the driver. Right now, the same sobriety testing methods used to detect alcohol impairment are being used to catch people on marijuana.
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“I think what a lot of people don’t understand is impairment is impairment, whether it is from alcohol, marijuana or other drugs and, if they have a prescription or medical marijuana card, if a person is behind the wheel, they are still dangerous,” saidKevin Behrens, the director for the Board of Tests for Alcohol and Drug Influence, in an interview with KFOR Oklahoma News 4.
The problem with roadside drug testing for marijuana is they do not distinguish between who is high right now and who was high last night. Because of how marijuana metabolizes in the body, THC can show up in a person’s system up to a month after their last use. This can be problematic for regular users.
But there is no effective breathalyzer on the market that can tell the difference between the two situations. This means as long as THC is present in a person’s system – this can be found through saliva and blood tests — police can, in most cases, charge a motorist for driving under the influence.
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Unfortunately, holding a state-issued medical marijuana card doesn’t provide patients with any kind of defense.
But since there is no way to determine beyond doubt whether a person was driving high or not, legal expert say it can be tough for the prosecution to land a conviction – as long as the suspect fights the charge.
“It is difficult for the DA’s, as well as the police, to prosecute these cases because of the fact that the marijuana — you don’t know when it’s been smoked, as opposed to somebody with alcohol in their system,” California defense attorney Robert Shatzco saidin a 2018 interview with KRON4. In the marijuana situation,” he continued, “we don’t know whether or not the person has ingested the marijuana recently or as far away as 30 days.”
Several years ago, a report from CBS News suggested that the majority of marijuana impairment cases were being acquitted because the law was not strong enough to hold users accountable.
So, if you ever find yourself in the position of being charged with high driving, the most important thing to remember is to deny and fight the charges. Find an attorney that specializes in these types of cases and keep his or her number close. You never know when a routine traffic stop will escalate.