The safest way to avoid being prosecuted for driving under the influence of marijuana is to simply not do it. Driving under the influence of any substance is not only illegal, it is dangerous. That said, police do sometimes accuse innocent people of driving while high. Regardless of your situation, there are simple steps you can take to avoid being prosecuted and to protect your constitutional rights.
First, you should never drive with an open container of marijuana in your car. An open container is any used marijuana smoking device or any container of marijuana where the seal from the dispensary has been broken. Think of the jar you keep your marijuana in as a half-empty bottle of vodka—it should only be kept in the trunk. While the ticket for an open container is a small fine, police and district attorneys will use it against you when prosecuting driving while high cases.
Second, you should never smoke in your car. Smoking in public is illegal in Colorado. While the fine for letting a passenger smoke while you drive is minor, you better believe that the police will not believe that only the passenger was partaking. If you let your car smell like smoked marijuana, you are asking for the police to suspect you are high anytime they pull you over.
Third, if you do get pulled over and the police ask you if you have used any marijuana today, DO NOT ANSWER. DO NOT LIE. Juries hate liars and police will use it against you. If you haven’t smoked that day, smoked a few hours ago, or even if you literally just took a hit your answer is always the same: my lawyer has advised me to never answer those type of questions. That’s it. You are not under ANY obligation to answer anything but your name.
Fourth, if the police suspect that you have been driving under the influence of marijuana they will likely ask you to complete road side sobriety tests. These are tests like walking in a straight line or standing on one leg. YOU SHOULD ALWAYS REFUSE TO DO THESE TESTS. They do not impact your license, have never been verified to show marijuana impairment, and can only hurt you. Simply say that your lawyer advised you never to submit to voluntary roadsides tests.
Fifth, if the police have “probable cause” to arrest you for driving while high they can invoke what is called Express Consent. This means they can ask you to take a blood test. This is where it gets tricky. If you REFUSE to do this blood test you will lose your license for two months and then you will be required to have an interlock (breathalyzer) in your car for two years. It is strange that there is an alcohol punishment for refusing a marijuana test but that is how the law is currently set up. In addition to the interlock, the district attorney WILL use the fact that you refused against you in court. If you DO submit to the blood test, the level of THC in your blood can be used by the jury to presume that you were impaired by marijuana. The science surrounding blood levels of THC as they relate to impairment, however, is not well established. People who use marijuana regularly will have higher levels of THC in their blood even though they may not be impaired. Thus, as a general rule, we advise clients not to submit to the blood test. Every situation is different, however, and even if you are found not guilty you will lose your license for refusing the test.
Finally, like any crime, if you are arrested you need to seek counsel immediately. DO NOT WAIT. Call Cheney Galluzzi & Howard, LLC as soon as possible so that we can take the necessary steps to give you the best defense possible. Our attorneys specialize in assisting those charged with driving under the influence of marijuana.