How Is Marijuana DUI Proveable?

[FoieGrasIsEvil]

My wife is facing a DUI charge in Kentucky for marijuana. We live in bordering Indiana.

To wit, she was driving to go just past Louisville to meet up with our BIL to pick up her daughter whom were coming up from Tennessee (meeting halfway).

Anyway, she got pulled over for speeding. The cop smelled marijuana in the car, even though my wife hadn’t smoked any that day. What she did do was forget that she put a half-burned joint into her open cigarette pack and had taken it with her.

Anyone that’s ever smoked pot knows how much a partially burned joint reeks, especially to a trained nose like a cop’s that’s looking for it.

So, she was given field sobriety tests, which she passed. She had, remembering the incriminating dope in her cig pack upon being pulled over, put the pack into her pocket. They searched the car with a drug dog and didn’t find anything. When they asked her if she had anything, she told them no. Upon searching her person, they discovered the joint.

They then put her under arrest, telling her that if she hadn’t lied to them they would have just given her a possession ticket, a speeding ticket, and sent her on her way. Really? WTF?

Instead, she had to spend a night in jail and is now being charged with DUI as well. She has court tomorrow and plans on pleading not guilty to the DUI charge, but guilty to speeding and possession. We also cannot afford an attorney, and she is going to ask the court to appoint one to her.

They did administer a urinalysis once she was taken to the police station.

My question is (since I can’t get a definitive answer googling around) how are they going to prove DUI when they have no evidence other than possession and the results of a piss test? How is a piss test going to tell them whether she was impaired or not?

What’s the dope (hee-hee)?

[stpauler]

Might be bad, I can’t find if this passed or not:

March 9th, 2009

Senate Bill 5, an act to criminalize anyone who operates a motor vehicle with any detectable level of marijuana in their blood, was recently approved by the state Senate and is now before the House of Representatives. It is possible that members of this Committee are planning on voting on this measure TOMORROW!

If passed, Senate Bill 5 would mandate criminal penalties for any person who operates a motor vehicle with any measurable level of THC in their blood. This proposal would improperly impact cannabis consumers because THC can remain detectable at low levels in the blood of daily marijuana users for up to 1 or 2 days after past use. In the case of chronic smokers, THC may be detectable in the blood for even longer periods of time.

Source

[FoieGrasIsEvil]

@stpauler

Might be bad, I can’t find if this passed or not:
Source

Thanks, I saw that and wondered myself if that (bad) law had passed or not. Apparently it isn’t the first time this law had made it’s rounds in the Kentucky Senate.

[Hirka_T_Bawa]

@FoieGrasIsEvil

My question is (since I can’t get a definitive answer googling around) how are they going to prove DUI when they have no evidence other than possession and the results of a piss test? How is a piss test going to tell them whether she was impaired or not?

First, IANAL, what I am about to say is an educated guess, but should not be taken seriously. Get your own lawyer.

I do not know exactly how the DUI law reads in your state, however a urinalysis tests for the metabolites of Delta-9-THC, not the actual drug. As such, as far as I’m aware there is no way for them to prove that she was under the influence at the time of the arrest, they can only prove she was under the influence sometime in the past 30 days.

Also, here is what the Department of Justice’s web site says about the scheduling of Delta-9-THC:

(d) Hallucinogenic substances. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation (for purposes of this paragraph only, the term “isomer” includes the optical, position and geometric isomers):

And…

(30) Tetrahydrocannabinols 7370

Meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis plant, or in the resinous extractives of such plant, and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant, such as the following:

-1 cis or trans tetrahydrocannabinol, and their optical isomers
-6 cis or trans tetrahydrocannabinol, and their optical isomers
-3,4 cis or trans tetrahydrocannabinol, and its optical isomers

(Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions covered.)

The way I read this, the metabolites of Delta-9-THC isn’t scheduled, so is not against the law.

So, I gather if you have a good lawyer, they would make the state prove that she was high at the time of the arrest, since she wasn’t, they wouldn’t be able to prove it, and would only be able to prove the possession charge. But then again, IANA Lawyer, so what the hell do I know?

@stpauler

Might be bad, I can’t find if this passed or not:
Source

The summary of that bill reads:

 Amend KRS 189A.010 to establish a per se violation of the DUI statute if the driver has at least a certain amount of a controlled substance in the blood; create a defense if the person took the controlled substance in compliance with a valid prescription; reduce the required alcohol concentration for an aggravating circumstance from 0.18 to 0.15; amend KRS 189A.105 to lower the alcohol percentage from 0.18 to 0.15 for increased penalties; amend various other statutes to conform.

So, that means if my reasoning from above is correct, they won’t be able to prosecute people who have partaken of marijuana.

[Stringer]

IANAL but a good lawyer should be able to get this reduced to possession alone.

[Kimmy_Gibbler]

Perhaps you’ve already seen it, but this article appears to be a decent introductory synopsis of DUI prosecutions in Kentucky. The most relevant portion to your wife’s predicament would be the following:

You can be prosecuted for a DUI involving drugs even where a physician prescribes the drugs. Generally these cases often involve “other” substances (marijuana, cocaine, heroine, etc.) in the driver’s blood system. The prosecutor is required to prove impairment caused by the drugs in your system. Mere proof of the presence of substance or its “metabolites” is not sufficient to render a conviction.

Beyond the DUI penalties set forth above, Kentucky law has other more punitive statutes for possession of drugs. A “possession” offense may be committed by a person driving a car, or by a person not operating a car. However, a person driving a vehicle may face both the DUI offense AND the possession offense. These “possession” statutes are generally felonies, except where less than eight ounces of marijuana are involved.

So perhaps there is some room to avoid conviction for DUI of marijuana. I imagine the PD will work out a plea bargain–probably something like guilty on the speeding violation and the possession charge in exchange for dropping the DUI count. Less than ideal, but if this is a first offense, hopefully the punishment will be minimal. Good luck.

[FoieGrasIsEvil]

Thanks guys. I love this place.

[FoieGrasIsEvil]

@Kimmy_Gibbler

Perhaps you’ve already seen it, but this article appears to be a decent introductory synopsis of DUI prosecutions in Kentucky. The most relevant portion to your wife’s predicament would be the following:

So perhaps there is some room to avoid conviction for DUI of marijuana. I imagine the PD will work out a plea bargain–probably something like guilty on the speeding violation and the possession charge in exchange for dropping the DUI count. Less than ideal, but if this is a first offense, hopefully the punishment will be minimal. Good luck.

Thanks. This is a first offense. I am pissed about the cops playing that “Well, if you wouldn’t have lied to us, we would have let you go with a possession ticket” card.

To me, that is just bullshit. So my wife, whom was unimpaired at the time of her arrest, had to spend the night and part of the next day in jail, I had to post bond with a fucking credit card, and then go drive an hour and a half away from home to go pick her up (this is after I had to drive down to where my car was along I-71 and call AAA to tow my the car, which she was driving, so it wouldn’t be impounded…it was JUST within the 100 mile limit).

So supposedly because she lied, they charged her with DUI, even though she passed the field sobriety tests? Give me a break.

[Richard_Parker]

If my wife were facing felony charges, I would seriously consider getting her a paid lawyer instead of a PD. The Kentucky public defender system is in very bad straits. These poor guys are so underpaid, they’re doing things like delivering pizzas to pay the rent. I wouldn’t feel at all confident that her case will be properly defended. If they persist on the DUI, I would think twice. Even if you’re right on the law, that isn’t always enough.

You said you have a car and you obviously have a computer (and pay for internet). That’s two assets you could sell or use to secure a loan.

This is not legal advice, IANYL, etc.

[Oakminster]

Proving DUI other substance is easier than one might think. The arresting officer will testify to the traffic violation that caused the stop. He’ll then testify that he detected a strong odor of marijuana coming from the car. He’ll probably also add that he observed blood shot eyes, slurred speech, excessive nervousness, and other physical details commonly associated with marijuana use/effects. He will testify that in his opinion, based on his experience and training, she was impaired while driving a vehicle. Cops that are trained in drug recognition/awareness make excellent witnesses. The fact that the driver had marijuana in her possession, lied about it, and tested positive for marijuana is also admissable, and the court may draw such inferences as it deems appropriate. There may also be video evidence available. That’s enough to convict.

[Kimmy_Gibbler]

@Richard_Parker

If my wife were facing felony charges, I would seriously consider getting her a paid lawyer instead of a PD. The Kentucky public defender system is in very bad straits. These poor guys are so underpaid, they’re doing things like delivering pizzas to pay the rent. I wouldn’t feel at all confident that her case will be properly defended. If they persist on the DUI, I would think twice. Even if you’re right on the law, that isn’t always enough.

You said you have a car and you obviously have a computer (and pay for internet). That’s two assets you could sell or use to secure a loan.

This is not legal advice, IANYL, etc.

I think there’s an ill-informed prejudice against PDs (and, no, I am not one myself). No, you won’t ever make as much as an attorney at Skadden or Cravath, but most PDs spend the great majority of their professional time defending precisely these kinds of cases and dealing with the exact same attorneys who will be prosecuting this case. I rather doubt that the private practice attorney F.G.I.E. could otherwise hire, at the possible expense of his computer and car(!), would have these bona fide practical advantages.

[Richard_Parker]

@Kimmy_Gibbler

I think there’s an ill-informed prejudice against PDs (and, no, I am not one myself). No, you won’t ever make as much as an attorney at Skadden or Cravath, but most PDs spend the great majority of their professional time defending precisely these kinds of cases and dealing with the exact same attorneys who will be prosecuting this case. I rather doubt that the private practice attorney F.G.I.E. could otherwise hire, at the possible expense of his computer and car(!), would have these bona fide practical advantages.

Don’t get me wrong. Public defenders are heroes. And the majority are damn fine lawyers. Everything you said above is perfectly true. The one thing you’re neglecting, and it is a pretty major thing, is that in many jurisdictions including Kentucky, these guys have a hundred more cases than the guy in private practice. Pound-for-pound, I’d put my faith in a PD over a private criminal lawyer every day of the week. But when the PD has 150 cases and the private attorney has six, well, I’d think twice about the value of my car.

[Richard_Parker]

The following is from the public defender website:

With 483 cases per year, defenders have only 3.8 hours to spend on each case, including
some cases that are complex and of necessity time consuming, including capital and other
violent felonies. Yet, in each case defenders are expected to do the following at a
minimum:
Interview the defendant
Review the charging documents
Go to court
Investigate
File motions
Try the case or resolve the case through negotiations
Participate in sentencing

It is clear that 3.8 hours is not sufficient to provide an adequate defense to DPA’s clients.

I mean, when they’re telling you that they cannot provide adequate defense to their clients, that’s a bad sign.

[FoieGrasIsEvil]

Aren’t PD’s regularly practicing lawyers that are on some kind of rotation? Meaning that they aren’t PD’s by choice, but as a way of establishing themselves or adhering to some kind of a statue that requires them to serve the needy public pro bono?

[Richard_Parker]

@FoieGrasIsEvil

Aren’t PD’s regularly practicing lawyers that are on some kind of rotation? Meaning that they aren’t PD’s by choice, but as a way of establishing themselves or adhering to some kind of a statue that requires them to serve the needy public pro bono?

No. A public defender is someone who serves full-time as a defender for the state. In some jurisdictions, there is still no public defenders office. In those places, judges will appoint private attorneys to do the job.

[ivn1188]

How did they search your wife? What was their probable cause? The search itself sounds questionable.

[bonitahi]

The cop SMELLED pot. Search is then allow. He had just cause.
Per SCOTUS…somewhere.

[ivn1188]

@bonitahi

The cop SMELLED pot. Search is then allow. He had just cause.
Per SCOTUS…somewhere.

No. The dog didn’t pick up the pot on her, and there was none in the car. That should negate the cop’s claim that he smelled it. (My guess is the wife looks like a potsmoker.)

I think the search is iffy.

[Richard_Parker]

Even if he had PC, what is the warrant exception? Could be a search incident to arrest, I suppose, even though he claimed he didn’t plan to arrest her until he found the pot. I’m sure the lawyer will look into all of this.

[Crawlspace]

@Oakminster

He will testify that in his opinion, based on his experience and training, she was impaired while driving a vehicle. Cops that are trained in drug recognition/awareness make excellent witnesses.

Which is unfortunate because many studies show that they are not very good at detecting impairment at all, and certainly not much better than the average Joe. Link

All three of the subject groups studied– social drinkers, bartenders, and police officers– correctly judged targets’ levels of intoxication only 25 percent of the time.

One would wonder why the cops opted to do a urine test, which only indicates use within the past few weeks, rather than a blood test which is a much better gauge of current intoxication.