The law has never had a reputation for being “tech savvy.” Ours is a rapidly changing world. Technology and culture are often a few paces ahead of the law, which can’t change until a big group of legislators or judges comes to a consensus. As a result, the law is usually scrambling to keep up with technology.
But things are a little different when it comes to marijuana use in Colorado. At least in terms of testing, it’s the technology that has yet to catch up with the law.
When Amendment 64 passed in 2012, legally permitting individual possession of up to one ounce of marijuana, it raised a lot of questions. Among the public’s greatest concerns: driver safety. How would the state address the potential for an uptick in intoxicated driving?
Police and policymakers still don’t have all those answers, but a recent story out of PC Magazine describes a new technology that might make its way to the law-enforcement front lines: the marijuana breathalyzer test.
Of course, sobriety tests are nothing new. And just as with blood-alcohol tests in the field, the marijuana breathalyzer test is already marked by unfortunate shortcomings.
So where does the test stand now? What problems might arise if Colorado decides to implement a marijuana breathalyzer test? How can a Denver DUI defense attorney help those accused of stoned driving in Colorado (even in the absence of a breathalyzer)? Get answers to these questions and more below.
Marijuana Breathalyzer Test Still in the Development Phase
Researchers at Washington State University are hard at work on a marijuana breathalyzer test, patterned after the similar test already widely used in suspected cases of alcohol-related DUI.
Of course, alcohol and marijuana are not the same things. They affect the body differently and they require different methods of detection. What works for one breathalyzer may not work for the other.
The device under development at WSU will use a science called “ion mobility spectrometry” to detect THC in someone’s breath. THC is the active intoxicating agent in marijuana.
Lab tests are reportedly wrapping up at WSU, and the prototype is ready to begin testing with human subjects during the first half of 2015. After that, they’ll take it out in the field, working with law enforcement to try it as a real-world policing device.
Eventually, researchers hope to have their marijuana breathalyzer test in active use in Washington, Oregon, and Colorado.
The Technological and Legal Limitations of a Marijuana Breathalyzer Test
The marijuana breathalyzer test under development at WSU is not capable of determining the amount of THC in a person’s blood. Rather, it only confirms whether any active amount of THC is in the subject’s breath.
One must question, then, the test’s utility. It is not illegal to drive with a trace amount of THC in the body if that amount falls below the legal limit (5 nanograms per milliliter of blood). The new test won’t be able to tell an officer whether the driver falls above or below that limit.
Developers stress that their breathalyzer would only be used as screening tool — identifying potentially stoned drivers and then subjecting those people to confirmatory blood testing.
“Anything that will help us get impaired drivers off the road,” a representative for Washington’s state troopers told PC Magazine.
That’s an understandable instinct. Nobody wants dangerous drivers on the road. But we must also remember that unfairly accused motorists have rights too, and the law does not permit a “by any means necessary” approach to traffic enforcement. The tests used must be reliable, specific, and fair in order to satisfy Constitutional requirements and hold up in court.
Whether WSU’s marijuana breathalyzer test can meet those requirements isn’t yet clear.
State Police Already Test for Stoned Driving in Colorado
In talking about breathalyzers as a theoretical technology for the future, it is important to remember that police already have a handful of methods for detecting stoned driving in Colorado.
Urine and hair tests can tell whether there’s THC byproduct in the body, but that only indicates past use — not necessarily an active influence. Only blood and saliva tests can measure the active level of THC. Of these, blood is the test of choice in Colorado.
Of course, marijuana blood tests have their fair share of problems too. While they can produce fairly accurate results, as with virtually any test, the administration and analysis is vulnerable to indiscretion and error.
Even more problematic, Colorado’s legal limit of 5 nanograms per milliliter of blood is incredibly low. 5 nanograms simply isn’t a lot. Even a very small, seemingly insignificant amount of marijuana, ingested several days earlier, could land a sober driver in jail.
Marijuana Laws in Colorado Are Still in Flux
Things change.
We’ve seen that first-hand here in Colorado, where the public’s relationship with marijuana has evolved significantly in just a few years’ time. The reality is that legal marijuana possession is new territory, and the law and the culture are still in a period of adjustment.
The marijuana rules in Colorado might continue to change. Specifically, we could see a revision in the legal limit. Courts are also likely to clarify defendants’ rights as new cases arise.
At the same time, technology changes too. The marijuana breathalyzer test currently in development can’t detect THC levels, but that could change. Other detection technologies might arise in the future as well. We’re in a state of flux.
Get Help from a Denver DUI Defense Lawyer
Whether you agree with Colorado’s legal THC blood limit, and regardless of how you feel about the possibility of a breathalyzer test, remember that driving under the influence of drugs or alcohol is illegal in Colorado. That includes marijuana, even after Amendment 64.
State police will enforce the law and do their best to arrest, prosecute, and convict you if they can. Whether you “feel fine” is of little legal relevance. Play it safe. Stay at home, take a bus, or ride with a friend.
Of course, we’re human. We make mistakes. Maybe you’ve been accused of DUI/DAWI in Colorado even though you hadn’t used marijuana for days. Or maybe you got behind the wheel when you shouldn’t have. That’s the wrong thing to do, but Wolf Law understands that even good, law-abiding people can slip up.
Denver criminal defense attorney Jeffrey Wolf has many years of experience as a Denver DUI defense lawyer. He offers compassionate, effective representation for those who find themselves accused of what is a very serious crime. A DUI/DWAI conviction could turn your world upside down. Nothing is more important than defending against the charge and protecting your reputation and freedom.
To get an experienced Denver DUI defense lawyer on your side, please contact Wolf Law for a free consultation today.
