Fort Lauderdale Criminal Defense Attorney Grant Schwarz explains how yes, and how no.
So what’s the deal with marijuana and DUI’s? How come we don’t see them very often? Well, mostly because there aren’t any recognized roadside tests to determine impairment based on
consumption of THC. Another reason is because the chemicals in marijuana will remain in your body long after the effects of the chemicals wear off. If you smoked last week, the high will likely wear off within a few hours. However, the weed will still show up in your urine if you are tested today long after the effects are gone. This can create a problem.
Most people know that traces of THC, the illegal ingredient in marijuana stays in your body for way longer than most other drugs. For example, cocaine will usually leave your system through urination after about 72 hours. Heroin can stay in the system of a heavy user for up to one week. The same type of body elimination occurs for most prescription painkillers like vicodin and percoset or other controlled substances like alprazolam (Xanax) or diazepam (valium), all of which are illegal to possess without a valid prescription.
So if there are no roadside tests for DUI based on marijuana, a breathalyzer will not register for consumption of marijuana, and everyone knows that weed stays in your system for weeks or longer, how could anyone be charged with DUI based on weed? I will tell you.
DUI law provides that the state of Florida can charge you with driving while your ability is impaired either by Alcohol; a chemical substance listed under chapter 877.111 or any controlled substance under chapter 893 Florida Statutes. Chapter 893 is where all of the illegal drugs are listed: Cocaine, heroin, MDMA, Crystal Meth and even Marijuana or Cannabis as its called in the statute book.
Ordinarily, if you are stopped by a police officer and you have recently smoked marijuana, aside from the distinctive and pungent smell of the smoke; you may exhibit some signs of “impairment” such as bloodshot eyes, dilated pupils or even a slow or slurred speech pattern in addition to laughing and increased appetite. The problem for the police to be able to pin these symptoms on illegal drugs use, the officer must be certified as a Drug Recognition Expert or DRE. There are not many DRE’s because it takes a significant amount of training and schooling to become certified, most officers do not care to take the extra time and work to achieve this level of certification. Good for us, bad for the police trying to arrest you for DUI based on cannabis use.
So in the standard type of DUI investigation, you might be able to avoid being arrested. But what if you were involved in a crash and someone was injured, even if the crash is not your fault? Florida law provides that there are mandatory blood draws on cases involving serious bodily injury. If you are involved in a crash, and the police draw blood, which shows the presence of marijuana, you might be looking at potential charges of DUI.
The blood would however need to be analyzed closely. THC enters the body and is immediately broken down by your system into several other chemicals. These other chemicals are called “Metabolites” because your body metabolizes the chemicals, changing their structure while moving around in your bloodstream. Some of the metabolites that show up in the drug tests are known as Active Metabolites and some are called Inactive. Active meaning that the body is still breaking it down and that you are potentially still under the influence of the psychoactive properties of the chemical, the “High”.
The active cannabis metabolite is known as 11-Hydroxy-THC. The chemicals are then further broken down into what is called 11-COOH-THC which is is not psychoactive, but will stay in
the body of a marijuana user for several days or even weeks. This is the main metabolite tested for when blood or urine testing for cannabis use. More sophisticated tests are able to distinguish between 11-OH-THC and 11-COOH-THC, which can help determine how recently cannabis was consumed. If the tests show that only 11-COOH-THC is present then the conclusion is that the marijuana was consumed too long ago for there to be any lasting high or impairment present. However, if both 11-OH-THC and 11-COOH-THC are present then the cannabis was consumed more recently and motor impairment may still be present.
The other type of scenario where an officer may be able to charge you with DUI is if you are arrested for suspicion of DUI, and then agree to submit to a breath test. If you have not consumed any alcohol, or if you have consumed a small amount of alcohol the results on the breath test will either read very low or even 0.0. If breath tests show up very low and officers believe you to be under the influence of chemical or controlled substances, an officer can request a urine sample. If you submit, and traces of cannabis metabolites show up you could be looking at a charge of DUI. If you refuse, you could still be looking at a DUI charge, but without either the testimony of a DRE or a urine test to confirm the officer’s suspicion, there will be very little evidence of actual impairment or even of any drug use at all. This would also be a good time to remember not to speak to the police about any recent drug use, see article about Talking to the Police.
Of course we are discussing hypothetical scenarios and no article or blog post could possibly encompass every minute detail of an encounter with police, a better course of action on your part is to avoid smoking marijuana in the car, and avoid driving after recently smoking. Police officers are constantly on the prowl for reasons to make an arrest, its almost like a sport. If you are driving and you smell like marijuana you can expect at a minimum that you will be detained for an extended period of time, while your vehicle is searched and potentially damaged by a drug sniffing dog or by the officers tearing apart your cars interior. The best defense against having an issue with the police is if you’re going to smoke, do it at home where you are safe and given the highest level of protection from the prying eyes of the government our constitution has to offer.
For any charges related to Possession of Cannabis or any drug as well as DUI in Broward Miami or Palm Beach, call Criminal Defense Attorney Grant Schwarz for a free consultation 24 hours a day. Fill out this contact form to receive a confidential consultation.