Tag Archives: Driving under the influence

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: https://assets.documentcloud.org/documents/6246965/Commonwealth-of-PA-vs-Timothy-O-Barr.pdf

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.”


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.

Cannabis Facts Chicago

January 1st typically marks a day when new laws take effect. This year, Illinois saw recreational marijuana become legal in some parts of its state.

In preparation for the effects of marijuana being more readily available for some users, Mayor Lightfoot and the Chicago Department of Public Health announced what they called “Cannabis Facts Chicago,” a public service campaign that includes tips and precautionary information targeted at those who plan on consuming recreational marijuana.

With California having been recreational since late 2016, “Cannabis Facts Chicago” serves as a reminder that, while legal, there are some inherent dangers in marijuana use, including those which might affect someone’s ability to safely operate a vehicle.

               Some health and safety tips highlighted are as follows:

  • Protect Your Brain: The legal age for purchase and use of cannabis products at licensed dispensaries is 21 years of age, but studies have shown that the brain continues to develop until age 25. Heavy use, especially by young people, may impair brain development, short term memory, and even intelligence.


  • Know Your Dose: Cannabis affects everyone differently. With different strains and a much wider array of products available on the market now, it may be difficult to determine the potency of each. Over-consumption can cause any number of symptoms, including but not limited to hallucinations, confusion, poor judgement, panic attacks, nausea, and vomiting. “Go slow and know your limits.”


  • Avoid Frequent Use: Daily use, especially in high does, have been associated with and increased risk of psychosis.


  • Don’t Consume if Pregnant or Breastfeeding: THC can be transferred to a baby through the placenta or breast milk so there is no safe amount when pregnant or breast feeding.


  • Potential for Addiction: Studies have shown that addiction is more likely when cannabis use begins early.


  • Don’t Drive While High: Not only are there potential dangers to yourself and others if you drive high, it is also illegal. Even having an open container of cannabis is illegal, even if you are a passenger.


  • Keep it Safe: With the market for edibles having grown, cannabis comes in innocuous looking forms like candy or chocolate. Make sure that the only person using your stash is you. Unintentional consumption by children or pets can be dangerous so keep your stash locked and away from their reach. If you think a child has consumed cannabis, contact 911 and the Poison Control immediately.


  • Stay away from Synthetic Cannabinoids: Not only are synthetic cannabinoids illegal in the state of Illinois, but they are also considered a health risk. This man-made chemical lacks regulation so products out on the market may not be as reliable as they seem.

According to the press release, “As the City readies rules around possession and consumption, and looks to adopt policies that ensure social equity, it also wants to reduce potential harms and protect youth, who are more susceptible to the negative health consequences of overuse, as their brains and bodies are still developing. In addition to the fact that use of cannabis is illegal for those under 21, it is important for youth and all users to consider that products today are much more potent than in the past.”

Boy on Top of Santa’s Nice List after Calling 9-1-1 on DUI School Bus Driver

Santa had better put 10-year-old Troy Luna at the top of the Nice List this Christmas season.

Luna, of Diablo Grande, a neighborhood in Stanislaus County, California, called 9-1-1 earlier this week to report his bus driver’s driving. Luna was one of between 40 and 50 students ranging from kindergarten to 5th grade who were passengers on the bus according to the CHP.

As Luna entered the bus, he smelled something odd coming from the bus driver, 51-year-old Karolyn Denise Ray. After Luna had noticed that Ray had missed a turn and driven onto the highway, he called 9-1-1.

“She stepped on the brakes really hard, and a few kids went flying and hit their heads on the seats,” Luna told KOVR-TV. “All my friends were trying to talk me out of it. I said, ‘I don’t care, I don’t feel right,’ so I just did it.” Luna said that other children on board were crying and panicking when he made the call to 9-1-1.

Lo and behold, when officers arrived, they discovered that Ray was under the influence of a controlled substance. Ray was arrested and subsequently charged with driving under the influence and child endangerment, according to KTXL. It will take a few weeks for testing to determine what substance or substances Ray was on when she was driving the bus.

“I think he is to be commended,” said Randy Fillpot, superintendent of the Newman-Crows Landing Unified School District. “I congratulated him yesterday morning at school; he absolutely did the right thing. When you suspect the safety of your peers is in jeopardy you do the right thing and in that case it was call 9-1-1.”

Law enforcement agreed.

“We are relieved that the children knew who to call in an emergency situation, so I consider this kid a hero,” said CHP Officer Thomas Olsen.

One wonders, “What does Santa bring a child who just saved, literally, a bus-load of other children, himself, and a soon-to-be-on-the-Naughty-List bus driver?”

Meanwhile, as I just mentioned, not only has Ray plummeted to the bottom of Santa’s Naughty List and looking at a stocking full of coal, she’s also looking at a whole host of “unwanted gifts” thanks to her latest transgression.

In addition to the California DUI, which carries up to six months in jail and up to $1,000 in fines, she also looking at child endangerment charges.

Under California Vehicle Code section 23572, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties that Ray will be facing.