New Breathalyzer for Weed? Q&A with Attorney John Hunsucker

A California-based company plans to launch a dual alcohol-marijuana breathalyzer by the end of this godforsaken year, and we have questions! Lucky for us, we also have friends like John Hunsucker — the attorney who literally wrote the book on Oklahoma DUI defense — to answer them.

Q: How long before we can expect to see a marijuana breathalyzer like this being used in Oklahoma?

Any such device would have to be approved for use by the Oklahoma Board of Test, before law enforcement in Oklahoma could use it. However, proposed rules for this legislative session make it a moving target, and I suspect it won’t be long before we see something like this in Oklahoma — we tend to copy other states a lot. Plus, it would give law enforcement another “device” to try and arrest people.

Q: How would it distinguish between legal marijuana use and intoxication? 

Currently in Oklahoma there is no threshold limit for being legally under the influence of THC, the active substance in marijuana. At this time, any detectable presence of THC is presumed to be ‘under the influence.’ That is why, where marijuana is concerned, I advise patients to always refuse to take impairment tests.

Even if there were a per se limit enacted for marijuana DUI, the device used to measure it would need to distinguish between presence and intoxication and be calibrated and maintained by the State of Oklahoma. And how would we even know if it’s accurate?

Q: So how do police officers determine this today?

Police officers try to determine impairment by use of a Drug Recognition Evaluation (DRE), which is a series of tests, including the Standardized Field Sobriety Tests we‘ve all seen on TV. Law enforcement will argue these tests are accurate, but they are not. It is junk science developed by police officers. Rarely is it performed correctly, and it doesn’t meet any basic scientific standard.  

Q: What rules should I know about marijuana use and operation of a motor vehicle in Oklahoma?

Since there is currently no THC threshold amount to be over the legal limit, as there is with alcohol, then it becomes a question of was the person under the influence. In the Oklahoma Uniform Jury Instruction 6-35, it defines “Under the Influence” as:

Condition in which alcohol/(an intoxicating substance)/(a combination of alcohol and another/other intoxicating substance(s)) has/have so far affected the nervous system, brain, or muscles of the driver as to hinder, to an appreciable degree, his/her ability to operate a motor vehicle in a manner that an ordinary prudent and cautious person, if in full possession of his/her faculties, using reasonable care, would operate or drive under like conditions.

Q: What should I do if I am pulled over in a routine traffic stop and the officer asks me about cannabis use?

Invoke your 5th Amendment right to remain silent. Do not agree to take any field sobriety tests, eye test or physical exam.

Remember that use of medical marijuana, or any other prescribed or recommended medication, can lead to a DUI if that medication impairs your ability to safely operate a motor vehicle.

Invoke your 5th Amendment right to remain silent. Do not agree to take any field sobriety tests, eye test or physical exam.

Q: Is an open bag of weed the same as an open container of alcohol?

No. It does not need to be locked away. The legal framework for Oklahoma’s medical marijuana program specifically says a person in possession of a valid state issued medical marijuana license may possess up to three ounces on their person. That being said, as a practical matter, I would keep it out of view as to not give the officer a reason to ask about it.

Q: What if the car smells like weed? What if cannabis smoke is billowing out of your car or a lit joint is observed in the ashtray?  

All these are bad news and would give an officer reasonable suspicion to make inquiry into whether the driver is under the influence. Once again, marijuana should be treated like any other intoxicating substance; always make the choice to drive responsibly.

Q: If I am arrested for marijuana DUI, what should I do?

Refuse all physical tests. Invoke your 5th Amendment right to remain silent. If we are only discussing marijuana with no alcohol, there are pros and cons to taking the test and/or refusing the test.

If you take the test, and as long as it’s not over the legal limit for alcohol, DPS won’t revoke the driving privilege, unless there is a conviction in the criminal case. However, if your case is one that would go to trial, taking the test gives them evidence of marijuana in your system. 

Q: Any final words of wisdom medical marijuana patients driving in Oklahoma?

Exercise your right to remain silent—make the police do their job. If you get a blood test and it comes up positive for marijuana, it may not be the end of the world — sometimes the police and hospital personnel don’t do the test right. Having an experienced DUI lawyer makes the difference.


Oklahoma DUI Attorney John Hunsucker

Attorney John Hunsucker is the man who literally wrote the book on Oklahoma DUI defense. He is way too badass to list all the particulars of his specialization and successes here, but if you want to feel like a real loser, go ahead and read John’s full biography.

And if you find yourself in a predicament that involves flashing lights and questions about intoxication, John Hunsucker is your one phone call.

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