Pot Breathalyzers are Being Tested By Law Enforcement

With the number of states that have passed recreational marijuana laws, the need to detect stoned drivers has increased. Technology companies have come to the rescue, creating devices to detect whether an individual has recently smoked or ingested marijuana. While the devices are still undergoing testing, one researcher, who happens to be a volunteer officer, has begun field testing. Like the alcohol breathalyzers that are commonplace, the marijuana breathalyzer detects the active ingredient, THC, in an individual’s breath. Based on the reading provided, an officer will be able to tell if a person has recently ingested or smoked marijuana. However, unlike alcohol, where there have been countless studies regarding the point of impairment, the research in regards to marijuana is lacking.

Why Does Law Enforcement Need a Pot Breathalyzer?

Marijuana, unlike alcohol, cannot be as accurately detected in urine, saliva, or blood tests. While it will show up in all three tests, the problem is that it can show up for days, weeks, or even months after the last consumption. The breathalyzer serves to bridge the gap in evidence an officer would need, not just to make an arrest, but also to make a court conviction more probable. The pot breathalyzer would allow officers to premise an arrest for DUI on marijuana based not only on a field sobriety test, but also on a breathalyzer reading that shows the driver has consumed marijuana within the last few hours. The device cannot detect marijuana use beyond a few hours.

When Will Device Go to Market?

While nearly half the country now allows either medical or recreational marijuana, the pot breathalyzers are not set to be publicly available for some time. The manufacturers are trying to rush the product to market, but more time is still needed. The devices still need to go through rigorous testing for accuracy, as well as the development of a standardized scale for when a person should be considered inebriated by marijuana. Just like many states have adopted the 0.08% BAC standard, a similar standard will need to be developed for marijuana before these devices can actually be effective.

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US Supreme Court to Decide if Person Can Be Stopped Based on Anonymous Call

On January 21, 2014 the United States Supreme Court (SCOTUS) heard oral arguments in the case Navarette v. California. In that case an anonymous caller dialed 911 to inform the police that a person was driving recklessly and had almost ran the caller off the road.  The caller provided only a vague description of the vehicle.  Police officers spotted a vehicle matching the description the caller gave some 19 miles down the road and continued to follow the vehicle for 5 more miles.  After observing no other traffic violations at all, police stopped the vehicle based only on the anonymous call.  Police then found marijuana and the occupants of the car were arrested.  Navarette, the driver of the car, asked his trial court to suppress the marijuana, meaning that the State could not use it as evidence at trial.  Navarette’s argument was that the stop was an illegal stop and seizure in contravention of the Fourth Amendment to the United States Constitution.  The general rule is that police may stop a driver, but only if they have articulable reasonable suspicion that the driver was, is, or is about to commit a crime.  His motion to suppress was denied, and the California Court of Appeals upheld the trial court.  Navarette then appealed the case to the highest Court in the land.

This pending Supreme Court opinion is something that criminal defense practitioners, as well as state and federal prosecutors all over the country, will no doubt watch for closely.  But more importantly, this case potentially has consequences impacting the Constitutional rights of all of us.  Freedom from unlawful search and seizure is something we take for granted every day.  Any time we are stopped by police, we become nervous, agitated, and downright scared.  We surely expect there to be a valid reason for the stop, and a good one at that.  If SCOTUS upholds the California Court of Appeals, a portion of those freedoms we take for granted will be peeled away.  Police and the government will have another legal reason to meddle in the lives of the everyday citizen.  If upheld, what is to stop an ex-spouse or partner, a disgruntled neighbor, an angry co-worker, or a whole host of other people from calling “anonymously” and reporting a non-existent traffic violation for the simple pleasure of knowing that the police will intervene.  That scenario is in direct contrast to the country we all know and have become accustomed to, where law-abiding citizens are not concerned with undue police harassment.  On the one hand, this SCOTUS opinion has the potential to erode those rights we have held so dearly for so long.  On the other, it can establish yet again that the Constitution is not just a historical document we learn about in civics class.  It lives and breathes, and even the almighty Government is bound by it.  A decision on which way we are going is expected later this year.