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Judge John E. Turner (Ret.)

Legalization of marijuana and DWI testing

With Washington and many other states already allowing some variation of legal marijuana use, law enforcement authorities could face more instances of DWI. Additional states are considering the legalization of pot during the 2016 election cycle, which could increase the potential for marijuana intoxication behind the wheel. However, those responsibly using the substance for medical reasons might worry about the potential for being detained based on blood or urine testing.

A Stanford University research team is developing a technology that could provide much more accurate and immediate THC testing results than those produced through current testing methods. Additionally, this test is believed to be a more realistic representation of actual intoxication. THC antibodies are used in connection with a spit sample that can be obtained through swabbing, which is a minimally invasive alternative to the collection or blood or urine. A reading can be obtained and transmitted to a wireless device in a matter of a few minutes, which can save time for both authorities and motorists.

While the detection of THC may be handled more efficiently, there are still challenges in identifying appropriate limits. Whereas the BAC limits have become well-accepted for filing drunk driving charges, there will need to be legislative work on a state-by-state basis for regulating marijuana use. A lack of consistency from one state to another could create confusion for authorities. This might also provide grounds for legal challenges by individuals accused of driving under the influence.

A lawyer defending a client in a case involving alleged THC intoxication might use strategies similar to those available in an alcohol case. The reliability of the equipment and testing methods being used could be challenged with new technologies in place. Additionally, the protocol used by an officer might be questioned. The handling of evidence might also come into play.

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