September 20

NHTSA Issues Report to Congress on Marijuana Impaired Driving

The National Highway Traffic Safety Administration issued a report to Congress in July 2017 about marijuana impaired driving. The report noted that studies have consistently found that the level of THC in the blood and the degree of impairment do not appear to be closely related. “While high levels of THC are detected in the blood (and oral fluid) during and right after smoking, they are not typically observed an hour or two later. In cases of traffic crashes or arrests for impaired driving, it is most likely that only relatively low levels of THC will be found by the time an oral fluid or blood sample is obtained. Low THC levels of a few nanograms per milliliter (ng/ml) in blood can result from relatively recent use (e.g., smoking within 1 – 3 hours) when some slight or even moderate impairment is likely to be present, or it can result from chronic use where no recent ingestion has occurred and no impairment is present.” Thus, there is a lack of clear correspondence between THC level in plasma and impairment. The peak THC level is reached soon after smoking ends, but peak performance deficits are observed long after the peak THC level occurs. The subjectively reported “high” also does not correspond well with blood plasma THC concentration. THC level in blood (or oral fluid) does not appear to be an accurate and reliable predictor of impairment from THC. Also, when low levels of THC are found in the blood, the presence of THC is not a reliable indicator of recent marijuana use.

The full report is available here.
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September 20

Standard Field Sobriety Tests are Admissible in DUI-Marijuana Case

Although there is no scientific agreement on whether the standard field sobriety tests used to detect drivers impaired by alcohol (the “horizontal gaze nystagmus test,” the “walk and turn test” and the “one leg stand test”) might indicate marijuana intoxication, the Supreme Judicial Court of Massachusetts ruled that a driver’s performance on these tests are admissible to “establish a driver’s balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle.”

But the court also ruled that the officer conducting the tests will not be permitted to testify that a driver “passed” or “failed” the tests, or whether the driver’s performance on the tests indicated impairment. A police officer not qualified as an expert (i.e., a Drug Recognition Expert) cannot offer an opinion about whether a driver was under the influence of marijuana.

The full opinion may be found here. 11967

June 30

Search Warrant Required for Blood Tests in DUI Cases

The U.S. Supreme Court ruled on June 23, 2016 that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. Birchfield v. North Dakota, 579 U.S. ___ (2016).

In Vermont, this ruling will immediately affect DUI-Drug cases where the police try to collect a blood sample after a DRE exam to test for the presence of drugs other than alcohol, and criminal refusal cases where the driver refuses to give a blood sample. Vermont imposes criminal penalties on motorists with prior DUI convictions who refuse to submit to a blood test.

In light of the Supreme Court’s decision in Birchfield, the standard advisory given to drivers in Vermont to obtain their consent to a blood test is inaccurate under the Fourth Amendment. Under existing Vermont case law, this constitutes a “flaw in the procedure,” arguably requiring suppression of any blood test result, or any refusal of the blood test, as evidence at trial, unless the police obtain a search warrant to collect a blood sample.

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