Category Archives: Duiblog

Marijuana Smell and the 4th Amendment

The expansion of legalized marijuana use and the changing marijuana laws are wreaking havoc on what law enforcement consider probable cause and the justification for certain searches.

The Fourth Amendment of the United States Constitution states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

Simply put, if you expect it to be private, cops must get a warrant to search it. And in order to get the warrant, they need reasonable and trustworthy facts that they’re going to find illegal.

Though there are exceptions to the need for a warrant, one of which includes the “automobile exception.” If an officer has probable cause to believe that a vehicle contains illegal or is engaged in illegal activity, they need not get a warrant to search it.

For years, officers claimed, and as became the standard, that the distinct smell of marijuana is what provided the officers the probable cause needed to search a vehicle without a warrant.  

But what about when a perfectly sober person drives a passenger who smells like marijuana because they use it for, say, medical purposes? In other words, if it now commonplace that passengers, or even drivers, can smell like marijuana (since it is legal), can we continue to allow cops to use it as justification to search without a warrant?

In one Pennsylvania court case, a judge made the correct ruling that the state troopers lacked probable cause to search the car of the defendant. The defendant had been sitting in the passenger seat while his wife had been driving the vehicle. When she failed to properly stop at a railroad overpass, officers pulled them over and then was able to “smell the odor of both burnt and raw marijuana through the open window of the vehicle.” The defendant was a medical marijuana card holder and showed it to the police. Despite this, the officers claimed that they still had the right to search the vehicle.

However, the court judge ruled that the troopers did not have further cause to search his vehicle because he produced his card at the time of the stop. Thus, she determined the subsequent search of his vehicle to be unlawful and that all evidence collected from the vehicle search should be suppressed. You can read more about the case through this link:

In another case, a Maryland officers searched a vehicle based on the smell of marijuana. They found a joint containing less than 10 grams of marijuana, a civil offense. The officers then arrested the defendant at the scene and searched his person, which resulted in the discovery of cocaine in his pocket. Although the vehicle search was permitted, the judge decided that there was no further reasonable cause for the officers to arrest and search his person. According to the Maryland Court of Appeals, “this is based on the heightened expectation of privacy one enjoys in his or her person as compared to the diminished expectation of privacy one has in an automobile.”

Alongside marijuana, in 2018 the United States government passed the Farm Bill which federally legalized hemp production, raising further concerns regarding this issue. The smell of marijuana and hemp and nearly identical.

In some states, such as Florida, prosecutors are pushing for a new “odor-plus” standard where the smell of marijuana may still be used as cause, but only as one factor out of many in determining probable cause.

The judicial system’s acknowledgement that times are changing is promising. However, let’s hope that the wheels of justice don’t spin so slow, as they unfortunately often do, that it can’t keep up with what we know to be correct approach to marijuana.


Law Requiring Impound of Drunk Drivers’ Vehicles Struck Down

At least some courts are getting it right.

Late last year, the Washington State Supreme Court struck down 2011 state legislation that required the mandatory impound of vehicles when their owners were arrested on suspicion of driving under the influence, otherwise known as “Hailey’s Law.”

Back in 2009, a woman was stopped in a parking lot for a minor traffic infraction. When the Washington State Trooper approached her vehicle, he found that she was driving without a valid license, had previous DUI offenses, did not have a required ignition interlock device, and appeared to be impaired. The trooper arrested her and took her in to the Whatcom county jail.

Since there was no third part available at the scene to drive the vehicle and wait for the woman, the officer chose to lock the car and leave. This is typical if the car is in a safe location and not impeding traffic.

At the county jail, the woman took a breath test and that determined her blood alcohol content to be above the legal limit. For unknown reasons, she was not booked into the jail, and the trooper drove the woman back to her residence, gave her back her keys with a warning to not drive again until she was sober. Common practice was to drive suspected DUI drivers to a public place like a restaurant or store to let them sober up. Unfortunately, the officer made a mistake.

After the trooper left, the intoxicated woman called a cab and returned to her car’s location. She attempted to drive her car home but crossed the centerline and crashed into another vehicle. The victim, Hailey Huntley, would spend over a month in the hospital as a result of multiple injuries, including a collapsed lung, dislocated hip, and a fractured right leg. Later, the DUI driver was found to have had a blood alcohol concentration higher than what she had earlier at the jail.

Following the accident, multiple rules changed. Administrators at Whatcom county quickly made it mandatory for DUI arrestees to be jailed, and other steps were set in motion to create laws that would prevent similar accidents from happening in the future.

As a result, Washington’s Mandatory Impound Law went into effect two years after the crash. It reads, “In order to protect public safety and to enforce the state’s laws, it is reasonable and necessary to mandatorily impound the vehicle operated by a person who has been arrested for driving or controlling a vehicle while under the influence of alcohol or drugs.”

The state legislature expressly stated the purpose of Hailey’s law was to shift the primary purpose for impounding the vehicle of drunk drivers from avoidance of traffic obstructions to the safety of the public. Additionally, it stated that the law was meant to remove the arresting officer’s discretion as to whether the vehicle should be left of impounded.

A 2018 DUI arrest, and subsequent vehicle impound cast doubt on the constitutionality of Hailey’s Law.

Joel Villela was pulled over for speeding, and when asked to take a breathalyzer test after the officer smelled alcohol on his breath. When he refused the test, he was arrested on suspicion of DUI. Although there were other passengers at the time of the arrest, Villela’s vehicle was impounded in accordance with Hailey’s Law. When the car was searched after the impoundment, law enforcement found sandwich bags, digital scales, pipes, and other paraphernalia related to potential drug dealing. Upon a search of his person, the police found cocaine in Villela’s possession. A charge of possession with intent to deliver controlled substances was added to his list of charges.

Villela’s attorney argued that the seizure of Villela’s car was unconstitutional because Hailey’s Law was the only basis for the search of Villela’s vehicle, when the Constitution required a warrant based on probable cause. As a result, he requested that the contents of the search be suppressed as evidence. The trial court agreed, and eventually the State Supreme Court agreed as well.

“The trial court below found that [Hailey’s Law] violates our constitution because it requires what the constitution allows only under limited circumstances. We agree,” the Court stated in its opinion. “Our constitution cannot be amended by statute, and while the legislature can give more protection to constitutional rights through legislation, it cannot use legislation to take that protection away.”

The Constitution, both state and federal, exist to protect individual rights, including the right to be free from unreasonable searches and seizures, and Hailey’s law allowed officers to engage in unreasonable searches and seizures. Although it might seem like the easy and “right” thing to do when someone has driven drunk, individual rights can never and should never be ignored in the name of “justice.”


Medical Marijuana Creates Complications for Employers

The legalization of marijuana in several states over the past few years has done little to create a standardized method of calculating and determining impairment. Although researchers are able to collect more information regarding marijuana use and impairment, they are still far from finding that magical number that distinguishes impairment from sobriety, like they have with a blood alcohol content. There is no current equivalent to the 0.08% BAC that was established for alcohol consumption.

Worse still, the federal government has yet to get on board with medical and recreational marijuana, despite several states doing so.

For many companies who solely operate within the scope of a single state, generally, they must only worry about state laws with regards to marijuana guidelines within the workplace. However, for companies in industries like transportation, navigating the parameters can be a lot more complex since their businesses can take them across multiple state lines where a state laws run at odds with another state’s laws or the federal government’s laws, confusing operations.

More than half of the states (currently 33 states and counting) have legalized medical marijuana within their boundaries. Multiple studies have shown the benefits it offers many pain-inflicted patients, and how it can help them regain some form of quality of life. Yet, without the federal limitations lifted, this puts employers in a difficult position.

The Department of Transportation (DOT) is pretty clear about where it stands on accepting medical marijuana users. The official website offers a “DOT ‘Medical Marijuana’ Notice” which states the following:


The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

That section states:

  • 40.151 What are MROs prohibited from doing as part of the verification process?

As an MRO, you are prohibited from doing the following as part of the verification process:

(e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana” laws that some states have adopted.)

Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” Please note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

As such, employers are left with two options when managing their employees who use medical marijuana: either 1) ask the person to stop taking their medication in order to comply with DOT regulations, or 2) terminate the employee following a positive drug test. Given the current climate and considering what we know about the benefits of marijuana use, the current options under DOT seem outdated to say the least.

To make the situation even more complicated, courts are allowing for termination cases to be challenged, even though many states have protections in place to keep employers from liability. These states created medical marijuana statutes that attempt to safeguard employers in the event of firing employees who test positive for marijuana.

In states such as Delaware and Connecticut, the courts have expanded workplace protections for medical marijuana users. In the case of Wild v. Carriage Funeral Holdings, Inc. the New Jersey Supreme Court is currently considering upholding an  appellate decision that held a terminated employee could contest his termination for a positive drug test under New Jersey’s Law against Discrimination.

So, what are employers to do? Using their discretion doesn’t seem to be working or giving any direction. Until the federal government decides to adjust their views on marijuana being a Schedule I drug, it seems that they can only continue to juggle the state and federal workplace laws. States where medical marijuana is legal should try to determine if they want to allow its use in non-safety-sensitive positions and perhaps tailor post-accident testing for only when there is reasonable suspicion of actual impairment. Guidelines for determining actual impairment should be added into the training of safety managers.

In any event both employers and employees are in a tricky spot. Maybe it won’t be the scientists who figure out how to determine impairment, but rather a safety-conscious Human Resources manager of a trucking company. That’ll be interesting to wait and see.

Changes to Indiana’s Expungement Laws

Back in May of last year, Indiana House Bill 1541 was passed – marking a huge milestone for state legislation. Starting July 1, 2019, those who wished to file for expungement were given a better opportunity to work towards having a true second chance at life.

In Indiana, individuals with dismissed cases, misdemeanor convictions, and any with a class D felony conviction were eligible to have their cases expunged after a set number of years. This meant that the court could issue an order to state agencies who are in possession of such records to seal or redact any identifying personal information in those reports.  When background checks were requested for these individuals, the expunged cases would now not show up, allowing for them to have a better chance for a fresh start. The only exception was that the internal records held by law enforcement agencies, prosecutor’s offices, or probation departments would not require any corresponding changes. For people with a class C felony or above, the expunged records would show on a background check but would be considered a class C infraction.

With the passing of House Bill 1541, the situation changed in the favor of the petitioners. It didn’t necessarily make the process for requesting expungement any easier, nor did it change the rules for how long one had to wait before expungement. Instead, it allowed a wider range of petitioners to be considered for expungement. In addition, the bill changed the terms “expunge,” “seal,” and “redact,” to “destroy or permanently delete.”

This may prove to be a huge step in a positive direction. The bill allows all case levels to be eligible (except for sex and violent offenses), allowing many more to have a second chance at trying to put their past convictions behind them. Also, the courts are no longer able to consider expunged cases in their ruling for future criminal charges.

Even with these changes, there are certain sections that did not change. One of the parts that remained the same is the reporting of information by the Indiana Bureau of Motor Vehicles to the Commercial Driver’s License Information System. This keeps the bill in accordance with federal law. Also, even with an expungement, there is no automatic restoration of firearms rights to those with domestic violence convictions.

While the law might open the door for fresh starts, there are some potential drawbacks. Unfortunately, this also can mean that prosecutors and judges will start to look at appeals much more closely than they have before. Any sort of leniency that was shown for early expungements may no longer apply. Since the expungement is now much more permanent, judges may feel that they have more responsibility and should show more strictness in making sure that the petitioner is deserving of the expungement. This can increase the risk of the expungement appeal being denied. In addition, this applies much more pressure on defense attorneys to step up their game. These attorneys may have to do more in order to ensure that they are able to convince the judges that their clients deserve the expungement.

Bear in mind that individual states approach expungements differently. Additionally, what the consequences are of a successful petition to expunge say, a DUI, will be different here in California than what they are in Illinois. For information on how an expungement in California might affect a California DUI conviction, see Can I Expunge a California DUI?.

DUI for CBD?

We have covered the continued issues with measuring THC in the body, more specifically, determining whether someone is impaired based on a given THC reading. In addition to not being able to find the benchmark for impairment from using marijuana, it seems like some of the machines used to measure the drug in the body can’t tell the difference between THC and CBD.

CBD, or cannabidiol, and THC, or tetrahydrocannabinol, are both naturally occurring compounds in both cannabis and hemp. Traditionally, the concentration of CBD found in hemp is higher and marijuana has a higher concentration of THC. Although they have the same molecular structure, a big difference between the two is that CBD lacks the psychoactive component that THC is most widely known for. And for purposes of a DUI, a person cannot get a DUI with CBD in their system because it would not cause someone to become so impaired that they are unable to operate a vehicle as a sober person would.

Also, while cannabis or marijuana is only legal in some states and not federally accepted, the passing of the Farm Bill of 2018 federally allowed the growth and sale of industrial hemp. With the legalization of hemp came a wide variety of CBD products which claim to offer assistance with anxiety or insomnia, however, the FDA only has approved one drug that contains CBD, which aids in treating a rare form of epilepsy.

Now, as mentioned above, hemp and marijuana both carry trace amount of both compounds. So while processed hemp, or CBD, products may not list THC as an active ingredient, it is possible that trace amounts of it show up on a blood test, or depending on the test conducted, the presence of CBD could be mistaken for THC.

Such was the case for Mark Pennington. Pennington, a divorced father who was sharing custody of his 2 year-old son, was informed by the mother of the child that his custodial rights were going to be taken away because she had run a drug test with the son’s hair and the test came back positive for THC, which could only have been during the time that the child was in his custody. Pennington had no recollection of giving his son anything containing THC and did not recall using the substance near his son. He was later advised of “a little-known study published in 2012 in the Journal of Analytical Toxicology that showed that a common forensic drug testing method could easily mistake the presence of CBD for THC,” by Frank Conrad, a scientific consultant who acted as his expert witness.

The notion that a drug test can misidentify the presence of THC is terrifying, especially given the problems we continue to encounter (and write about) with regards to determining intoxication.

The studies that Conrad referred to in his testimony deal with those that are run through the gas-chromatography mass spectrometry machine (GC-MS). Not all tests that are run through this chemical analysis unit are the same. Certain substances must be combined with a chemical in a process called derivatization. Commonly, the tests are run with a chemical called trifluoracetic anhydride (TFAA). The 2012 journal article found that when the GC-MS used TFAA to run its tests, it was unable to distinguish between CBD and THC, resulting in a report with the presence of THC.

Not all tests are derivatized with TFAA, but it is the most common derivatizing agent. Now, many labs have upgraded their testing to the use of high-performance liquid chromatography, which is less likely to make the distinguishing error between CBD and THC, but there are still many that rely on GC-MS technology.

As if there wasn’t enough to worry about in the way of law enforcement and prosecution getting the “damning” information correct.