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New Drug Testing Protocols Tested in California to Address Legalization of Recreational Marijuana

Posted by Aaron J. Wolff | Sep 06, 2017 | 0 Comments

Next year, recreational marijuana will become legal in the state of California. In order to combat some of the possible legal difficulties of monitoring the use of the drug in conjunction with driving, new measures were passed this summer. The new laws include a variety of training protocols for police officers on how to spot and assess drugged driving and how to use drug testing technology, as well as the law on open containers in moving vehicles.

According to the recently passed laws, it is now illegal to carry marijuana in California in an open container, just like alcohol. An open container is defined as “any receptacle of marijuana or weed products (edibles, vape pens, etc.) that is open, has been previously opened or has a broken seal, as well as loose cannabis flowers not in a container.” If you are carrying an open container of marijuana, it must be in the trunk of the car so that the driver or passengers cannot access it while the car is in motion.

Similarly to laws surrounding alcohol, police will now be able to issue $100 fines for those carrying open containers of marijuana in their vehicles. Medical marijuana patients will still be able to carry containers that have been previously opened in their vehicle, although they cannot ingest it while driving.

An important development in testing for marijuana intoxication will also be implemented in certain counties when recreational marijuana becomes legal in California starting January 2018. Police officers are currently being trained in some areas of the state to use a mouth swab to determine the amount of THC in a driver's bloodstream. Marijuana is notoriously difficult to test because THC remains in the bloodstream long after the effects of the drug have passed. In addition, “content in blood varies by frequency of use, weight and body fat, among other factors that give false positive results.” Because of this variation, it is often difficult to convict someone of a drugged DUI based solely on blood test evidence.

This new swab technology is designed to test the presence of six different common drugs, including marijuana. In theory, the “swab test allows officers to determine intoxication by identifying a particular compound that rapidly breaks down when a user has consumed marijuana.”

This technology has been used in a few limited tests in California, but judges are already accepting information from these tests. One judge in Kern County, California admitted evidence from a swab test in a drugged driving case which resulted in a fatality. The defendant was ultimately convicted. Time and legal contests will help to eventually determine the effectiveness of this particular method of testing for intoxication by marijuana. If proven accurate, this method may, in theory, replace the older and more invasive practice of blood testing.

About the Author

Aaron J. Wolff

A former DUI prosecutor, Aaron Wolff has over 18 years of experience in representing people accused of DUI and is recognized as one of the leading defense lawyers in Washington State. His relentless and passionate advocacy has lead to superb ratings and outstanding reviews from former clients.


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