Avoiding DUI Marijuana

Thanksgiving time is a popular season for roadblocks and other mechanisms for stopping impaired drivers. One should not consume any mind-altering substance before driving.

However, due to the active chemical’s lingering presence in an individual’s body, it is easy for innocent cannabis users to be accused of driving while impaired. To prevent unjust convictions, I have compiled a tip list:

1) Be wary of Edibles – Edibles often contain higher concentrations of THC, and can remain in your system for long periods of time. It’s generally advisable to wait no less than 24-48 hours after consuming edibles before driving. There is also the fact that sometimes edibles hit even experienced users extra hard. Make sure you have a designated driver if you plan to consume edibles and need to travel.

2) Don’t Consume While Driving – I know this sounds obvious, but if a cop sees you taking a drag of a joint, while you are behind the wheel, it is clear evidence of recent consumption. While it is not the same as proving impairment, most jurors don’t like sharing the road with drivers distracted by consuming marijuana.

3) Store Your Cannabis Properly – Just like an open alcohol container can be evidence impairment by liquor, so it is with cannabis. The law requires that any lawfully possessed cannabis in a car be in a locked glove compartment or trunk. Having it in your pocket or in the center consul is more consistent with recent consumption.

4) Do Not Voluntarily Submit to Tests or Evaluations – An officer may ask you to perform roadside assessments designed to catch drunk drivers. While citizens must obey direct lawful orders from police officers, requests are not orders. Similarly, do not agree to any kind of blood test, unless you are presented with a warrant. Do not allow any hospital staff to obtain blood samples against your will, unless there is a court order requiring it. They will likely tell you that it’s for medical purposes, but a positive result for cannabis will likely find its way into the hands of police and prosecutors. While medical records are generally confidential by statute, unlike legal or psychological records, they are not protected by a constitutional privilege that will insulate them from court subpoenas. Once obtained by prosecutors, they become admissible evidence.

5) Stop Talking – The number one cause of convictions for Operating Under the Influence of Marijuana is defendants making admissions to recent consumption. A bedrock of the United States Constitution, is that people cannot be forced to make statements against themselves. The act of remaining silent is almost never allowed to be used as evidence of guilt. If you are asked, “Have you consumed any marijuana today?”, there are a few options for answering. One is simply to remain completely silent and see what happens. You may get arrested, but there will ultimately be little evidence to go on. Another option is simply to say, “I’m respectfully refusing to answer your questions, am I free to leave?” If they say that you can leave, leave without another word. If they say you are not free to leave, follow instructions of police, but don’t speak any words.

6) Beware the “Drug Recognition Expert” – These are officers trained in pseudo-scientific methods for detecting impairment on drugs. Unless given an unequivocal order to submit to physical evaluations, arrestees should avoid cooperating with “Drug Recognition Experts.” Even if you are forced to submit to physical measurements or evaluations, do not say anything or answer any questions. Your silence is your best friend throughout the arrest and booking process.

7) Obey Traffic and Equipment Laws – Nearly every arrest for impaired driving begins with a moving violation or equipment defect. The police cannot pull you over for no reason, so here are some of the things they are looking for: crossing lane lines without signaling, weaving within a lane, breaking too much, driving more than 10 miles per hour under the speed limit. If you drive well, the chances of encountering police are slim.

8) Know Your License, Registration, and Inspection Status – Many folks get pulled over because they neglected some aspect of the driving regulations. Perhaps their license was suspended because they failed to pay a parking ticket years ago. Perhaps the car’s registration is up to date, but you forgot to put the new sticker on the license plate. Or maybe, due to decreased driving during COVID, you simply forgot to get your inspection sticker replaced. These are all violations that can lead to an arrest for something unrelated.

9) Have your Documents Easily Accessible – If you get pulled over, the last thing you need is to be digging through a pile of garbage to find your registration. Fumbling fingers in retrieving a license is something police officers are taught to look out for. An officer is likely to ask you an unrelated question while you retrieve these documents. He is not looking for an answer, so much as to observe how you handle splitting your attention between physically retrieving documents and answering a question. If you make getting the documents easy, answering the questions should be no problem, and will furnish evidence of non-impairment.

10) Don’t Even Think of Driving High With Kids in the Car – In Massachusetts, if you are convicted of Reckless Endangerment by Means of Operating Under the Influence with a Child Under 14 in the Car, you must serve a mandatory minimum sentence of 90 days in the House of Correction. A second offense is a felony that could land you in State Prison for 3 years.

The law surrounding Operating Under the Influence of Cannabis remains a rapidly developing area of law. Until there is a reliable roadside test to determine recent consumption, it is tricky for police officers to make the charges stick. The last thing you want to do is make their job easier, by volunteering information that you are not required to give. Being arrested is not the same as being convicted, so realize that your conduct after the arrest can be as impactful as your conduct beforehand. Keep in mind that everyone uses the roads, and that even the most zealous cannabis enthusiasts (and their children) rely on safe roads. It’s also worth remembering that many Massachusetts State Troopers believe that cannabis-impaired driving was responsible for the death of Trooper Thomas Clardy in 2016.