Driving Under the Influence of Marijuana

As the laws in Maryland regarding marijuana possession are relaxing, we are seeing an increase in cases involving driving while under the influence of marijuana.   There are few important things to know about marijuana and driving.   First, it is still illegal (in most circumstances) to possess marijuana in Maryland.   Even though possession of under 10 grams of marijuana is now a civil offense, it is still an offense.   This means that an odor of marijuana emanating from a vehicle still constitutes probable cause for an officer to arrest the occupants, search the occupants, and search any part of the car that may contain marijuana.   Decisions from Maryland highest appellate Court also allow officers to arrest someone for driving under the influence of alcohol and marijuana even though there is no evidence that the driver’s coordination is impaired.  MVA v. Spies, 436 Md. 363 (2013).  Therefore, if an officer says he smells marijuana during a traffic stop, you are subject to being searched and arrested, and possibly charged with driving under the influence of a controlled dangerous substance, which carries a possible punishment of one year in jail, a $1,000 fine, probation, and 12 points on your Maryland driving record.   However, unlike alcohol cases there is still no technology available to police departments that can measure the concentration of marijuana in your body for purposes of determining your level of impairment.  If you are arrested for driving under the influence of marijuana, you may be asked to take an alcohol breath test at the station.  There is no breath test being used in Maryland for detecting marijuana. If you have not been drinking alcohol you will pass the breath test.   However, if you refuse that test, your license can be suspended for 270 days for a first offense.   Even if you pass the breath test, another officer called a Drug Recognition Expert (DRE) may ask you to submit to a blood test.   This test can show the presence of marijuana in the blood but can’t help the police identify when the marijuana was consumed or whether the marijuana was interfering with the coordination of the driver. Refusing the blood test, however, can result in a suspension of your driver’s license.  (We have seen plenty of cases where a driver admits to smoking marijuana earlier that evening and an officer has found marijuana in the pocket of the driver; nevertheless, the driver refused to take a breath test and had his license suspended even though the blood test would only confirm what the driver already admitted to. )

Much of the evidence in a DUI-marijuana case comes from the Drug Recognition Expert.   This is a police officer who conducts an examination of the driver at the police station for the purpose of rendering an opinion about whether or not the driver is under the influence of some drug and possibly marijuana.   The science and validity of this examination is highly questionable and subject to attack. However, an important part of the examination includes coordination tests, also known as the standardized field sobriety tests.   A judge or jury will give a great deal of weight to these tests in deciding whether or not the driver’s coordination was impaired.   But these tests are often administered incorrectly and there could be other factors interfering with the validity of the results.  Fortunately, many police departments are recording these examinations with body cameras and in-station cameras.  Once we have access to these recordings, we can more easily detect errors in the examination process.   All of this means that just because you may have been charged with driving under the influence of marijuana, does not necessarily require that you be found guilty of that charge.   Every case is different.  So, it is important to discuss your case with an attorney with experience defending this kind of case.    Call to make an appointment at 301-251-9001.