Suspected Marijuana Use: Not A Matter of Police Opinion, Court Rules

With drug-related DUIs on the rise, police are increasingly likely to assume a driver is under the influence of drugs when they are not showing signs of a 'traditional' DUI. Some drivers are even mistakenly under the impression being high is an immediate defense to a drunk driving accusation. Arguably, years of public campaigns warning of the perils of drinking and driving have firmly solidified the ' reputation' of the offense in the public eye. Driving under the influence of drugs has not quite risen to the same level of notoriety. For this reason, some drivers may erroneously assume that it is a lesser offense if they are found driving under the influence of marijuana, because they have only been made aware of the stigma and penalties surrounding a 'traditional' DUI.

For example, NFL player Jeremy Lane openly admitted to officers in a recent DUI case that he was "more high than anything." He appears to have consumed at least some alcohol (his breathalyzer showed a .039 blood alcohol content) and was presumably concerned about being charged with alcohol-related DUI. Lane himself said the admission was made because he did not want "people thinking [he] was drunk." That very statement operates in the notion driving under the influence of alcohol is inherently worse than driving under the influence of drugs. Drivers should be forewarned that this is not the case, so that they do not make self-incriminating statements about drug use, under the impression that it will help their case. If Lane's charge had the potential to be dismissed because his blood alcohol content was too low, he has now done the legwork for the prosecution to charge him with DUI drugs because of his needless admission.

In the absence of an admission as overt as Lane's, officers may begin looking for signs that the driver is high, such as a smell of marijuana or various indications in the suspect's behavior. Officers' ability to "detect" a marijuana DUI may be unreliable. It can lead to unjust suspicion, if they are too liberal in how they define the 'signs' of marijuana impairment. Lawmakers have yet to establish a foolproof process for this charge or objectively reliable indicators of marijuana use.

The drug affects users differently; although officers may think they can reasonably detect signs of use, a recent court decision struck down this supposition. The Massachusetts Supreme Court ruled that officers may not give testimony that, in their opinion, a suspect was under the influence of marijuana, even if that opinion was derived from field sobriety test results or on-scene observations. Only those who have been qualified as experts in detecting signs of drug use are qualified to opine on the issue. Police may relay any objective observations, but they may not give a subjective opinion or say they believed a driver was high.

Even with some officers in Georgia receiving the controversial certification of drug recognition expert, there have been instances in which an officer believed a driver was high, took them in on this suspicion, only to be proven completely wrong. In spite of an expert certification, some critics characterize drug recognition as guesswork.

There is still much work to be done to streamline the process by which DUI drug offenses are identified and charged. Until then, it is critical that you protect your rights if you have been charged with a drug-related DUI. You are advised to immediately contact an experienced Georgia DUI attorney to discuss your case. Never face Georgia DUI Penalties without first consulting with our office.