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Hard To Prosecute High Driving Cases In Legal Marijuana States

PHOTO Max Braun


Hard To Prosecute High Driving Cases In Legal Marijuana States

Legal experts encourage maintaining innocence.

Science has struggled to catch up with states that have legalized marijuana, so far failing to come up with an effective method for law enforcement to gauge marijuana impairment. Because of this, the courts are reportedly filling up with prosecution proof cases. It seems that without the ability to prove that an individual was actually high at the time of their arrest, the accused are slipping out of the clutches of the long arm of the law. As long as the alleged motorists maintain their innocence throughout their case, legal experts say they have a really good chance of getting off scot-free.

“It is difficult for the DA’s, as well as the police, to prosecute these cases because of the fact that the marijuana — you don’t know when it’s been smoked, as opposed to somebody with alcohol in their system,” California defense attorney Robert Shatzco told KRON4. He says it is easy for the courts to get a conviction when someone is busted for driving drunk, as prosecutors typically have the results of a Breathalyzer to support his or her case. But convicting someone of driving under the influence of marijuana is a different story. “In the marijuana situation,” he continued, “we don’t know whether or not the person has ingested the marijuana recently or as far away as 30 days.”

In states like California, which officially launched its recreational marijuana law at the beginning of 2018, law enforcement is still being forced to use the same field sobriety tests for suspected high drivers than they do for those believed to be driving drunk. This is a problem since alcohol and marijuana metabolize in the body in completely different ways. While a Breathalyzer can indicate how much booze is coursing through the veins of a driver at the time of a traffic stop, marijuana is a more elusive beast. Depending on a variety of factors, including the size of a person, someone who smoked marijuana a month ago can still find themselves locked up for driving high.

But this is where the courts are having a tough time wrapping these cases up and delivering them with a pretty little bow. If a suspect fights the charge, denying that they were impaired when the cops picked them up, there is no science to help the prosecution prove otherwise.

Even with smaller chunks of anecdotal evidence, such as the odor of marijuana in the car or a driver’s blazing red eyes, the prosecution is still having a hard go when it comes to making stoned driving charges stick.

“You’ll see in police reports that they’ll have the watery eyes and the smell of marijuana,” which “helps the DA, but at the same time there is no measurable amount and you don’t know whether or not a person” is actually impaired,” Shatzko said.

The fact that there is no device on the market for law enforcement to gauge marijuana impairment is making it easier for defense attorneys to get people off on these charges, Shatzko explained.

“We’re helping our clients to either get the cases dismissed or get them reduced down to a lesser charge,” he said, adding that marijuana impairment cases will likely continue down this path until science is able to put an effective device into the hands of police.

It is for this reason that motorist Dang Nguyen Hai Tran, who was arrested on suspicion of driving under the influence of marijuana after causing an accident on Interstate 880 in Fremont that killed three people and injured several others, still hasn’t been charged. Shatzko says prosecutors cannot prove that marijuana impairment caused the wreck. “They don’t know how much this person has in his system” and “the blood test will only tell so much,” he said. Even if there was a measurable amount of THC in his system, prosecutors still have to prove he was impaired at the time of the accident.

This is not the first time legal experts have pointed out that prosecutors have their jobs cut out for them when trying to punish stoned drivers. Some attorneys have advised people arrested for driving high to take their cases to trial rather than accept a plea bargain. This is because juries have no other option but to turn in an acquittal if the prosecution cannot prove, without a shadow of a doubt, that the suspect was impaired behind the wheel.

Colorado (Jefferson County) District Attorney Peter Weir told CBS back in 2016 that the majority of marijuana DUI cases result in an acquittal because “our current law is not strong enough to effectively hold people accountable.”

Although driving under the influence of marijuana is not encouraged behavior, the message here is, if a person does get arrested for this offense, they should deny and fight it — no matter what. Chances are they will be able to weasel their way out of a conviction.

Unfortunately, this course of action only works in states that have legalized marijuana.

TELL US, what are your thoughts on driving under the influence of cannabis?



  1. Ed Goldner

    May 26, 2018 at 7:51 am

    Almost as important as a criminal charge, a civil suit for the same misconduct can wreck your life too. There the standard of proof shrinks from “Beyond a reasonable doubt” to 51% of the evidence. A jury makes the call if you are impaired and the financial risk of large punitive damage claims go through the ceiling if anything is in your system. It is a significant risk to drive impaired and cannabis users will almost always have the marijuana metabolite in their urine and blood. Both may be seized with a warrant after an impaired driving charge while you are under arrest. Pay your nickel, take your ride.

  2. Warren Brown

    May 25, 2018 at 9:24 am

    In arizona the law does not allow any metabolites in the blood while driving. If you have any, you are considered guilty of dui. It is up to you to prove your innocence.

  3. Michael Milburn

    May 24, 2018 at 8:48 am

    No one should drive impaired, but actual impairment should be measured, and the level of impairment from cannabis that is criminalized should be the same as the level of impairment for the blood alcohol limit. I have developed a new public health app that is a general measure of impairment from cannabis or any source–anything that impairs reaction time, hand-eye coordination, balance and the ability to perform divided attention tasks–it is called DRUID (an acronym for “DRiving Under the Influence of Drugs”) available now in the App Store and in Google Play. DRUID measures reaction time, decision making, hand-eye coordination, time estimation and balance, and then statistically integrates hundreds of data points into an overall impairment score. DRUID takes just 2 minutes.

    NORML of California is promoting DRUID on their website and is encouraging cannabis users to download it.
    Our website is

    DRUID allows cannabis users (or others who drink alcohol, use prescription drugs, etc.) to self-assess their own level of impairment and (hopefully) decide against driving if they are impaired. Prior to DRUID, there was no way for an individual to accurately assess their own level of impairment.

    DRUID was featured DRUID was featured in Wired magazine:

    on NPR’s All Things Considered:

    Also on television:

    And this past December on Spokane Public Radio:

    After obtaining my Ph.D. at Harvard, I have been a professor of psychology at UMass/Boston for the past 40 years, specializing in research methods, measurement and statistics.

    Michael Milburn, Professor
    Department of Psychology
    “ If we want to get serious about measuring impairment we will need to move to devices that gauge impairment by testing cognitive and physical functionality, along the lines of the DRUID app”

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