Last month in Marijuana DUI (Part I), we discussed the extreme difficulty the scientific community has had in measuring the effects of marijuana on a person’s ability to drive. In part two of this blog post, we now turn to the practical difficulties criminal defense attorneys face in defending marijuana DUI charges.

Jury Selection on a Marijuana DUI Case

As a starting point, it is pretty much the experience of every defense lawyer that jurors tend to analogize marijuana to alcohol when it comes to DUI.  As we discussed last month, there is no .08 limit for marijuana for THC.  Consequently, jurors cannot convict a person based on a “number” alone.  The criminal cases then turn when the prosecuting attorney proves that the person was actually impaired by the marijuana use.  But how does marijuana impair a person’s ability to drive?  Jurors have a wide range of views and experiences on this subject. Many jurors have never used marijuana, and so they are inclined to think of it in terms of drugs they have tried such as alcohol or prescription pills. Additionally, some jurors may have used marijuana in their youth and experienced a strong, somewhat hallucinatory experience as a first-time user. As one would imagine, asking prospective jurors about their experience with illegal drugs can be a little awkward.  In urban environments such as Spokane or Seattle, jurors have a bit more anonymity during the jury selection process. However, in rural locales such as Okanogan County, Stevens County, Lincoln County, or Grant County, jurors are much more inclined to actually know one another.  A defense lawyer or a prosecutor is just not going to get a straight answer out of the jury panel on the subject of marijuana use.  Additionally, jurors in those rural counties such as Okanogan or Stevens County are going to have, on average, less accepting views toward marijuana use as a whole than say Seattle, for instance.

Marijuana Use and Observation of the Police

A prosecution for a marijuana DUI usually involves a police officer testifying about the ways he or she believed that a driver was effected by marijuana or THC. Jurors come to court knowing what a drunk person looks like, but often have no idea about the ways marijuana effects (or doesn’t effect) a person. Drug recognition experts (DRE’s) usually testify that a driver having consumed marijuana will have dilated pupils, red or bloodshot eyes, a lack of convergence of the eyes, an elevated pulse rate, elevated blood pressure, eyelid tremors, and disorientation. Compared to DUI involving alcohol, much less is taught about marijuana DUI investigation at the police academies. Officers seem to exchange tips on these investigations, and the techniques are frequently the subject of discussion in online police forums, see here, for example. Much of what the police study comes from the NHTSA manual Drugs and Human Performance. Unfortunately this volume is full of some pretty odd opinions and discredited techniques on such investigations. The manual mentions the “green tongue” phenomenon, or green coating on the tongue that a smoker of marijuana is “supposed” to have.  Additionally, the manual opines that marijuana cigarettes “are often laced with adulterants including PCP or crack cocaine,” which is something I certainly don’t hear about “often” in my practice as a defense lawyer. Officers often describe looking closely with their flashlight for flakes of marijuana that might be on drivers’ laps, or remain on the tongue or mouth of a user after smoking a marijuana cigarette.  Officers also seem to be of the opinion that hanging tree-shaped air-fresheners indicate that the driver has been using marijuana, according to above mentioned forum.

So as you can see, the current state of marijuana DUI enforcement leaves much to be desired.  The practical effect of all this is that drivers are often at the mercy of the subjective opinions of the officer as to how he or she looked.  These “evaluations” for marijuana intoxication are typically not video-recorded.

What do you think about how society should deal with this issue?  Please share you thoughts, opinions, or experiences on this subject in the comment section below.

(The author Steve Graham is a criminal defense attorney practicing in eastern Washington.  See his further information on the laws DUI or marijuana in the State of Washington.)