Marijuana Breathalyzer Test Coming to the United States

The National Institute of Science and Technology has earmarked $1.4 million to study roadside cannabis chemical tests.

This study is part of an overall effort headed by the National Institute of Justice. So far, the NIJ has committed over $14 million to over two dozen marijuana breathalyzer researchers. “With these awards, NIJ continues its dedication to strengthening the criminal justice system through forensic science research and development,” noted Lucas Zarwell, director of NIJ’s Office of Investigative and Forensic Sciences. “We appreciate all the innovative and dedicated scientists who are committed to increasing our understanding of, or producing useful technologies for, the forensic sciences,” he added. The latest device collects breath samples over a short period and analyzes how cannabis content changes in the person’s breath.

North of the border, the Northwest Territories RCMP began using a marijuana breathalyzer in July 2022. The semi-invasive test takes about fifteen minutes to perform and is similar to alcohol consumption tests

DUI-Drug Law in Georgia

“Drugged driving” may be a bigger problem than “drunk driving.” Alcohol causes about a third of the fatal car crashes in Georgia, but about half of fatal accident-causing drivers tested positive for a potentially impairing drug. However, there’s a big difference between “testing positive for” and “being under the influence of.” Georgia law is a bit uncertain on this point, and such legal uncertainties almost always benefit Marietta criminal defense attorneys.

Before we delve into the drugged driving aspect of Section 410-6-391, let’s look at what is at stake. Georgia’s DUI law has a number of mandatory penalties other states don’t have. Some examples include:

• Minimum $300 fine which cannot be probated or reduced,
• Twenty-four hours confinement,
• Forty hours of community service,
• Alcohol risk reduction program (which is basically a victim impact panel) as well as a clinical alcohol evaluation, and
• Minimum twelve months of supervised probation.

The alcohol evaluation is sometimes an issue for DUI-drug defendants. Since these individuals may not use alcohol and therefore don’t have a problem with it, a counselor may declare a person is in denial and refuse to let that person go through with the treatment program. A Marietta criminal defense lawyer can solve this problem in advance by ensuring the defendant sees a counselor who appreciates the true nature of the problem.

DUIs have severe indirect consequences as well, mostly regarding auto insurance rates. Most convicted DUI offenders must keep high-risk SR-22 insurance for at least three years. An SR-22 increases insurance rates by an average of 116 percent. Furthermore, after the three-year period, there’s no guarantee the cost will decrease.

The drugged driving law in Georgia itself is very broad. It’s illegal to operate a motor vehicle “Under the influence of any drug to the extent that it is less safe for the person to drive.” California has a similarly worded law. In 2016, officers arrested a man for driving under the influence of caffeine. Prosecutors later dropped the charge, but the fact that it was filed illustrates the broad nature of the law in California and many other states, including Georgia.

Current Methods

We mentioned the difference between testing positive for drugs and being under their influence. Georgia law doesn’t define the difference. However, being “under the influence” implies illegal use.

In lieu of a chemical test that shows the level of drugs, prosecutors usually rely on results for the field sobriety tests. Most of these tests are divided attention tests which are designed to detect alcohol use. Scientifically, people who have been drinking cannot follow directions and physically execute them. They can only do one or the other. Marijuana and most other drugs don’t affect people in that way.

Furthermore, tests like walking a straight line only prove the defendant was impaired. The source of that impairment could be drug use, nervousness, fatigue, clumsiness, or pretty much anything else.

To bolster the evidence in DUI-drug cases, police officers often summon Drug Recognition Experts to the scene. Don’t let the “Expert” designation mislead you. DREs are usually police-trained technicians. Additionally, DRE use is a self-fulfilling prophecy. DREs arrive at the scene to confirm drug use, so in most cases, that’s what they do. Troubled publishing heiress Patty Hearst, who was something of an expert on this subject, once said that trouble is easy to find if you go looking for it.

One other note about the field tests. The National Highway Traffic Safety Administration has only approved three of these tests. However, officers often administer unapproved tests, like counting backward, touching finger to nose, or reciting part of the ABCs. These tests fatigue the defendant, physically and mentally, so s/he does worse on the tests that count.

Chemical Test Issues

The conviction rate in Breathalyzer and blood test DUI cases is almost twice as high as the conviction rate in refusal cases. Prosecutors would love to have that advantage in DUI drug cases.

Technologically, we aren’t quite there yet, as the aforementioned government investment shows. Furthermore, technology isn’t the only issue.

One issue is the relationship between the substance and impairment. Alcohol impairment builds slowly over time. The more you drink, the worse it gets. Marijuana, the primary drugged driving culprit, has the opposite effect. According to one study, marijuana immediately impair drivers, but the effect completely dissipates after four hours.

There’s a numbers issue as well. The impairing level of marijuana is between one and five nanograms per liter of saliva. Because of the way marijuana works, as outlined above, results on the lower end of the scale probably don’t mean the subject is under the influence of marijuana.

Finally, saliva tests are the most reliable cannabis tests. Legally, these tests are in a gray area. Under current law, police officers don’t need search warrants to administer breath tests. But they must have a search warrant to administer a blood test. So, is a saliva test more like a breath test or a blood test?

Lawmakers will probably answer most of these questions during legislative hearings. Thus, it’s important for a Marietta criminal defense attorney to represent defendants at these forums as well, and not just in the courthouse.

There’s a difference between a criminal charge and a criminal conviction. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.