What To Do If You Get Pulled Over With Marijuana

This piece first appeared on The Leaf Online. 

This year marks the first holiday season in which over 33 states have enacted some form of legalized marijuana consumption. The number of drug related DUI/DWIs have sky-rocketed in the last year across the nation as a direct result of the lack of knowledge surrounding the level of impairment while under the influence of cannabis. Needless to say, legal cannabis use and DUI season are a recipe for chaos. In order to survive being a statistic, be sure to know your rights. These are the top most “little-known” rights you have while engaged in a traffic stop, and the officer suspects you to be under the influence.

Generally, as a licensed driver on the road in almost any state in America, you have implied consent to provide a breath, blood, or urine test in order to detect for impairing substances. This means that agreeing to have a license simultaneously means you agree to submit to any of the aforementioned chemical tests following probable cause by a police officer.

Notice, this implied consent only extends to biological tests. Despite popular belief, you are under no obligation to consent to a field sobriety test. In fact, the probable cause the officer’s use to be able to make you blow in a breathalyzer or submit to a blood test is directly due to your performance in their subjective field sobriety test. A test, which has been designed and approved solely for alcohol, and according to the National Highway Tax and Safety Administration, is not a definitive indicator of impairment.

The Supreme Court of Maryland held that the Drug Recognition Expert who undergoes 152 hours of training to perform roadside field sobriety tests for alcohol is not a scientific expert, nor is he able to accurately assess impairment based on the standards provided in the DRE guidelines. Considering the majority of officers are not the specialized experts, the chances that the field sobriety test would be an accurate indication of impairment are significantly lower.

In every state that has enacted some form of legalized marijuana consumption, a police officer’s use of the smell of marijuana alone as probable cause has not been upheld. This means an officer needs more than the fact that your car smells like weed to be able to search your vehicle and compel a blood test from you. Knowing this may impact your decision when deciding to submit to a field sobriety test. Assuming there was no other reason the officer had as probable cause, this will likely end the interaction with the officer. To be sure it is, make sure you use the magic words: “Officer, am I free to go?”

The officer may ask you to step out of your vehicle, and he is well within his rights to do so, he may even go so far as to pat you down. It is important to know here that the only thing the officer is supposed to be patting down for is weapons — that is all. Anything that does not feel like a weapon is not covered under the frisk and may not be removed from your clothing or person without your consent. Officers generally sneak the consent in there by making it not seem optional —  this is a police tactic and does not alter your 4th amendment right to privacy. Be firm but polite in your refusal, and when the officers undoubtedly try to make this look like an admission of guilt, be aware of your right to remain silent. It is important to remember this right whenever you feel uncomfortable with the level or type of questioning from the officer. They are trained to get under your skin.

There is an old wives tale that says the police may not open your trunk or locked glove box without a warrant. So sorry to disappoint, but this is not true. Supreme Court case California v. Acevedo established that when dealing with a car, an officer does not need a warrant, only probable cause in order to search both the trunk and locked glove box of the vehicle. This may only be done if they saw some indication of criminal activity in plain sight, or something about your behavior indicated that you may be under the influence of something. If you were only pulled over for pulling too far over the stop sign this does not count as probable cause and the officer may not search your car or the trunk or glove box.

The final word of advice is for all the passengers. When riding in a car with someone, if you are pulled over and asked to step out of the vehicle, be aware of where you left your belongings. If you take them with you when you step out of the vehicle, the officer at that moment needs a warrant to search your purse, if you leave it in the car, he does not and may search your purse no problem.

The most important way to stay safe on the roads is to stay smart behind the wheel and that means knowing your rights. In the mass hysteria of the legalization movement, the science has not exactly caught up with the movement. Knowing your rights may make the difference between spending a night at home and a night in jail. Knowledge is power, stay powerful.