Marijuana breath test could impact California DUI cases

On behalf of The Law Offices of Michael L. Davidson posted in Breath Test Refusal on Friday, November 8, 2013.

California has implied consent laws for driving under the influence of alcohol or drugs. This means that all licensed drivers are agreeing to be subjected to breath tests if they are pulled over on suspicion of intoxicated driving. Failure to comply with an officer’s order to take a breath test generally results in criminal charges.

Although California law prohibits driving under the influence of both drugs and alcohol, there has never been a reliable roadside test for drug intoxication. Researchers now believe that a marijuana breath test might be a reliable way to test for intoxication, however. Because urine and blood tests are controversial in nature, authorities might view this as an alternative to build a case for drivers suspected of using marijuana and getting behind the wheel.

At this point, the technology for marijuana breath tests isn’t ready to hit the market, but should California police adopt this technology in the future, it could raise some legal concerns. Drivers could be subject to the same implied consent laws for pot breath tests. Failure to take the test when being pulled over for DUI could hypothetically result in automatic criminal charges.

Another concern with the use of breath tests for marijuana intoxication has to do with the reliability of the tests, at least as they currently stand. Namely, initial test results show significant variations in results based on how often a person consumes marijuana. Specifically, those who only smoke pot occasionally are less likely to test positive within hours of smoking marijuana than those who smoke regularly. This is an inconsistency that could create serious legal trouble.

Knowing that breath tests are inconsistent, a person might fear the possibility of a false positive. At this point, a person would have to choose between inaccurate test results and refusing the test, both of which could result in charges.

As efforts to develop marijuana breath tests continue, California residents may want to keep an eye on what kind of impact this technology could have.

Source: The Huffington Post, “Alternative To Controversial Blood Test For Pot DUIs,” Matt Ferner, Oct. 22, 2013

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The Law Offices of Michael L. Davidson
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San Mateo, CA 94402

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San Mateo Law Office