Thursday, September 19, 2019

Cannabis and Field Sobriety Tests | What You Should Know

Now that recreational cannabis use is legal in California, law enforcement is running into the problem of how to determine if an individual is too impaired to drive after smoking. The standard field sobriety tests that are used to test if a driver is too drunk to drive aren’t very reliable when testing if someone is too impaired to drive due to marijuana usage. Blood and urine tests that are used to determine a driver’s blood alcohol content can give false positives when testing for THC as well because THC can register on blood and urine tests long after the effect of smoking have worn off. This doesn’t stop Law Enforcement from trying to determine if a driver under the influence of marijuana is too impaired to drive, though, and our Oakland Criminal Lawyers want you to know what to expect if you’re pulled over.

Cannabis Field Sobriety Test Methods

Many law enforcement officers will still use field sobriety tests that are used for determining if a driver has had too much to drink such as:

The Horizontal Gaze Nystagmus Test: This test is administered by the officer moving an object such as a pen from side to side in front of the drivers face while the driver follows the object with their eyes. This allows the officer to look for the eyes jerking involuntarily which is associated with levels of intoxication that are too high to safely operate a vehicle.

One Leg Stand Test and the Walk and Turn Test: Both of these tests are intended to divide the driver’s attention between physical and mental tasks and if the driver has trouble performing the tests than the officer may ask for a blood or urine test to verify that the driver is under the influence. The walk and turn test is also known as the “walk the line test” allows the officer to look for loss of balance, inability to stay on the line, or walking the wrong number of steps. The one leg stand test allows the officer to watch for swaying or hopping around due to loss of balance.

While these tests are effective at determining if the driver is too drunk to drive, they are not very reliable when determining if a driver is too high to drive. Law enforcement officers are determining new methods that target marijuana impairment specifically that could be implemented and improved over the next few years.

Saliva Swab Test

Law enforcement agencies are now utilizing a saliva swab test that is meant to detect THC, methadone, cocaine, crystal meth, and several other prescription medications. The accuracy of this test is still under debate though as THC can still be present in a person’s saliva up to three days after consuming marijuana. This leaves a lot of room for doubt in a courtroom as to whether or not the driver was actually under the influence at the time they were pulled over.

Probable Cause to Search your Vehicle

If an officer smells burnt marijuana when you’re pulled over they have the right to search for anything in plain view in your car, such as a roach in your cup holder or pipes in plain view, to use as evidence that you’re driving while impaired. If an officer smells fresh marijuana as well they could claim probable cause to search your vehicle due to an “open container” clause in Proposition 64.

How to Avoid Trouble with the Law

With the legalization of recreational use, we will likely see much more enforcement of road cannabis-related DUI’s. Your best options to steer clear of trouble with the law is to 1) Avoid smoking in your car and 2) If you have marijuana in your car make sure it is sealed and in the trunk or somewhere not accessible by the driver or passengers. If you are arrested on a Marijuana related DUI charge call a lawyer right away. We’ll help you fight for your innocence.

State Certified Specialists
Robert Beles - State Certified Criminal Law Specialist
Anne Beles - State Certified Criminal Law Specialist
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California Board of Legal Specialization


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