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| image courtesy psychologytoday.com |
NEW MARIJUANA BREATH TEST
in development at Washington State Univ.
for Roadside Encounters...
This is big news. Here is a link to article. In reading the article, these scientists are "excited" that their device is correct 50-60% of the time! WOW. And they expect to roll this technology out by the summer of 2016.
To begin...this scares the hell out of me for my prospective clients in the coming years.
Defending DWAI Drugs charges are VERY difficult for many reasons. In New York, the prosecutor is allowed to prove that you were, in fact, impaired by drugs (and in violation of the law) if there are illegal drugs found in your blood OR any drugs that could affect your ability to operate a motor vehicle (i.e. prescription, legal meds). OR they can prove it by using a junk science technique called "Drug Recognition Evaluation" where a police officer puts you through a battery of coordination tests to supposedly prove that you are impaired on drugs.
So our current landscape for prosecuting driving while under the influence of drugs is shoddy and unreliable NOW.
Why?
There have been NO STUDIES OR MEDICAL RESEARCH (at least that I am aware of) that measure exactly how much marijuana somebody has to smoke or ingest to be impaired to the extent where one cannot operate a motor vehicle. In some states, it has been said that 5 nanograms of marijuana means you are impaired. However, that number has not reliably been proven in scientific studies measuring various people's level of impairment.
Unlike alcohol where New York has determined that 0.08% BAC is the magic number where a person is likely to be unable to safely operate a vehicle, there is NO SUCH NUMBER EQUIVALENT for Drugged driving cases. That's a problem. Mostly because there is NO NUMBER associated with measuring drugs in your blood. Just the presence of them. A blood test also cannot measure if you are still feeling the effects of any drug...just whether it is in your blood...(or its remnants). It's unreliable and can get you convicted of a crime (and give you a permanent criminal record --as there is NO EXPUNGEMENT IN NEW YORK).
How will it be quantified? I don't know (nor do they).
Also, MARIJUANA in particular takes weeks to fully break down in your body. If you smoke weed and take a blood test 3 weeks later, it is very likely that there will AT LEAST be marijuana METABOLITES in your blood.
The quantity of a drug cannot necessarily be determined by a blood test. The most invasive test we use in New York for determining alcohol or drug consumption.
SO NOW THEY WANT TO USE YOUR BREATH to Determine if you have Weed in your blood? (a flawed concept in itself)
Given how unreliable the ALCOHOL breath test is, I am incredibly skeptical about this new marijuana breath testing device. Just using common sense, if you have ever been around somebody who smoked weed, it has a VERY powerful and distinct odor. The smell will be on a user's breath, on their clothes, and on surrounding furniture --FOR A LONG TIME. If the device just detects the odor--how will it know if the odor is coming from somebody's breath or from their clothes. What if you were in a room where people were smoking weed and you got the smell on your clothes--but didn't partake?
I'm scared for my clients because I believe this sort of technology will be extremely unreliable in effectively prosecuting people with a reasonable rate of accuracy. I think good people will be falsely accused due to a positive reading on one of these tests and will not be given the benefit of the doubt even if they have no prior criminal record ---just like first time DWI offenders are not given the benefit of the doubt now in Ithaca and surrounding counties where I practice.
In most cases, the District Attorney assumes everybody is guilty...and doesn't give credence to the fact that the accused has NEVER been in trouble before. It's a problem now, and I'm worried it will be an ever BIGGER problem if this sort of marijuana breath test technology is implemented in our local law enforcement.
My take is this: the police will pull you over, smell weed, make you take one of these breath tests, if you refuse (it will likely be a traffic ticket like the alcohol roadside equivalent) and then they will ask you to take a blood test (and if you refuse, then you will lose your license for a year and be subject to $1000's in fines, etc).
Blood tests are not reliable either. You can read some of my other posts on Blood Gas Chromatograhy and Headspace Gas Chromatography.
The more I learn about the so-called science behind the tests that are used to determine a person's innocence or guilt in the criminal justice system, the more I believe that these sorts of "scientific developments" need to be challenged BEFORE they are implemented in our society --to prevent the wide spread possible negative outcomes on all of us for false prosecution.
BY Attorney Mike Cyr
P: 607-229-5184
E: mike.ithacadwi@gmail.com
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