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There May Soon Be a Marijuana Breathalyzer Test

Jun 16 2017, by Jessica McElfresh in Drug Crimes, DUI, Legal Blog, Marijuana Business, Marijuana Charges

An Oakland-based startup called Hound Labs is making waves with a portable device that can measure the presence of THC on your breath in parts per trillion. According to both field tests and controlled studies, this cannabis breathalyzer can accurately detect whether you’ve recently eaten or smoked cannabis.

The device may eventually be adopted by California law enforcement agencies, in which case it will likely result in more DUI arrests over suspected cannabis impairment. But it remains to be seen whether this new technology will have a significant impact on how the subsequent DUI cases will involve.

If you’ve been charged with a marijuana-related DUI in California, you need a skilled lawyer by your side. Attorney Jessica McElfresh can put her experience to work for you.

Call McElfresh Law today at (858) 756-7107.

Will the Cannabis Breathalyzer Be Used as Evidence in DUI Trials?

The Hound Labs cannabis breathalyzer is a portable device, like the alcohol breathalyzers that law enforcement carry in their vehicles. The primary purpose of these devices is to help officers gain probable cause to make a DUI arrest. If you fail the preliminary roadside breathalyzer test after getting pulled over, the officer will have a valid reason to arrest you on suspicion of DUI.

The result of a roadside breathalyzer test for alcohol may also be used as evidence of your intoxication at your DUI trial. Many other states do not allow prosecutors to use evidence of these preliminary tests to prove the guilt of a DUI suspect. In California, the issue has been before the Supreme Court on several occasions. It is likely that the same will occur with cannabis breathalyzers before their results are allowed in criminal DUI trials.

California Does Not Have a Legal THC Limit for Drivers

There is a fundamental difference between using the results of a portable breathalyzer test in DUI cases involving alcohol, as opposed to cannabis. California, like all other states in the US, has a legal blood alcohol content (BAC) limit of .08 percent. But no such limit exists in California for THC.

California Vehicle Code section 23152(e) provides that: “It is unlawful for a person who is under the influence of any drug to drive a vehicle.” But without a legal limit for THC and other drugs, how does a prosecutor show that you were under the influence while driving?

In marijuana DUI cases, prosecutors need to prove that as a result of consuming cannabis, your faculties were so impaired that you could no longer drive your car as well as an average sober person. Any of the following facts may be used as proof that you were under the influence:

  • You were driving erratically
  • You admitted to the police that you were high, or even buzzed
  • Your eyes were red
  • Your pupils were dilated
  • A drug recognition expert concludes that you are high
  • You failed a field sobriety test
  • You had weed paraphernalia on your person or in your car

If Hound Lab succeeds in marketing its device to law enforcement agencies, a failed breathalyzer test may soon become one of the above factors in proving your intoxication. But unless California law changes, it will never be the only factor.

A Cannabis Breathalyzer Cannot Demonstrate That you Are High

The Lab Hound breathalyzer accurately reports if you have recently consumed marijuana, but that does not mean that you are high. Does the machine return a positive after you smoke one puff, which most regular cannabis users would feel to the same extent that an average drinker would feel a sip of beer?

There is no scientific consensus about how much THC needs to be in your system for you to be high, so the mere presence of THC on your breath alone is not conclusive proof of your intoxication. To obtain your conviction for DUI, the prosecutor must prove every element of the case beyond a reasonable doubt. Therefore, a failed cannabis breathalyzer test alone likely does not meet the standard of proof necessary for a conviction to occur.

The bottom line is that, if the results of a portable cannabis breathalyzer test are ever allowed in future DUI trials, the prosecutor’s workload will not change much. For now, the science is too inclusive and the laws are too vague for a DUI conviction to hinge on a failed test result alone. Even if you fail a cannabis breathalyzer test at the roadside, a skilled San Diego DUI attorney may be able to prove your innocence.

At McElfresh Law, we closely follow legal and technological developments that pertain to criminal and civil case involving cannabis. If you’ve been charged with marijuana DUI, we can help. Call us today at (858) 756-7107 for a free and confidential case consultation.

California marijuana laws change frequently. For updated information, see the following pages: Medicinal Uses of Marijuana and Recreational Marijuana Business