The Marijuana Breathalyzer: Coming To A Police Department Near You

November 12, 2020 by G.W. Schulz

Oklahoma’s approach to drug enforcement has evolved in recent years, most notably when voters legalized medical marijuana in 2018. But the changing laws have created a major challenge for police departments: How do you enforce existing laws that prohibit “drugged” driving when medical marijuana is legal?

Current Oklahoma State law makes no distinction between marijuana and alcohol for drivers. Drunk and drugged driving laws are enforced with equal severity, even if the driver has a doctor’s prescription.

Even after legalization, Police have continued to pursue “drugged” drivers as aggressively as drunk drivers. But, driving impairment caused by marijuana is much harder to detect than alcohol impairment. Current blood tests used by police can detect marijuana even if you haven’t used it for as long as a month. That’s all police need to charge you with a marijuana DUI. The presence of marijuana in your system is all that’s required. And having a legally issued medical marijuana card makes no difference at all.

To combat this problem, a new effort is underway to find technology that can identify a motorist under the influence of marijuana on roadsides. How police departments and lawmakers ultimately decide to test for marijuana will have a large impact on a growing number of medical users.

Coming To A Police Department Near You

In early 2020, Oklahoma set aside $300,000 to test a marijuana breathalyzer being touted by the California company Hound Labs. According to the company, its technology can detect marijuana consumption (smoked or eaten) within three hours of someone being pulled over.

Okmulgee lawmaker Rep. Scott Fetgatter says he is backing the experimental technology in part because of concern for drivers being jailed mistakenly by faulty technology.

“If you take a blood test and you test hot for marijuana, it’s an automatic DUI,” Fetgatter told the media. “That’s terrible, because you may not have used it in a week. I’m trying to solve a problem, so we don’t convict people of DUI, simply because of the way marijuana metabolizes in their blood.”

He’s the first to concede that current marijuana breathalyzers cannot be used as evidence against drivers in court. And unlike breathalyzers that detect alcohol, motorists could not face any punishment if they declined a marijuana breathalyzer. You could, however, face the loss of your driving privileges for refusing a blood test.

Expect police across the state to be using these experimental marijuana breathalyzers in 2021.

If you are accused of drugged driving

The potential consequences of a marijuana DUI in Oklahoma are severe. There are several important things for you to consider in the event that an officer suspects you of driving under the influence of marijuana

A first-time DUI offense in Oklahoma can lead to a year in jail. Two offenses can become a lifelong felony. A more severe charge can lead to years or even life behind bars.

In addition to your arrest, a 30-day clock begins in which intervention by an advocate is necessary to prevent a revocation of your driver’s license. This suspension of your driving privileges also occurs if you refuse a blood test. This is a civil action by taken the state and occurs separate from any criminal charges you might face.

While you have the right to refuse a blood test, the officer can still seek a warrant for your blood in the event you refuse based on his or her suspicions.

Voluntarily participating in a marijuana breathalyzer could actually assuage an officer’s concerns if you haven’t ingested in recent hours. If a later blood test shows any trace of marijuana in your system, even weeks old, that’s enough for a marijuana DUI.

In the event you are arrested, there are important questions your lawyer can ask to tell your side of the story, so selecting the right attorney as soon as possible is essential.

For example, police need a justification to pull you over, whether it’s a simple traffic violation or specific indications of you driving under the influence. Here are additional questions that could be asked in your case and improve the outcome in your favor:

  • If you consented to a field sobriety test, was it correctly administered?
  • Did you consent to a marijuana breathalyzer or feel pressured to do so?
  • Was the officer a trained drug recognition expert?
  • Did the officer have constitutional grounds for stopping you?
  • Did the officer claim to smell marijuana emanating from your vehicle? Can the officer distinguish between unburned and smoked marijuana?

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