You can be charged with OWI in Michigan for being under the influence of drugs behind the wheel. Marijuana is an increasing concern as efforts to legalize pot for medical or recreational use gather stream. Police are struggling to determine how to assess someone's level of impairment caused by marijuana use as lawmakers grapple with how to establish a marijuana limit similar to the blood alcohol concentration (BAC) limit used to determine if someone is too drunk.
New technologies could soon make it easier for police to assess your impairment level. Insurance Journal reports a marijuana breathalyzer is coming soon. Once a marijuana breathalyzer is introduced, your OWI defense may need to include addressing breath test results showing you had consumed too much cannabis.
Marijuana Breath Tests and OWI Cases
Multiple companies are working on development of a marijuana breathalyzer. One company, based in Vancouver, expects to be the first to bring the test to marketplace. There is no specific date for when the breathalyzer will be released, but there is a prototype already undergoing in-house testing. There are also other companies and individuals, including a Washington State University professor and a Colorado company, working to develop the product.
Lifeloc, which currently makes alcohol breathalyzer tests, expects to charge as much as $2,500 to $3,500 for the initial cannabis-detecting breath tests. The high initial cost could mean not every police station will be investing in the tests.
It will also be an important question to consider whether the breathalyzer tests are reliable and accurate enough to either be used to create probable cause justifying a blood test or other more reliable drug test, or whether the breathalyzer tests are accurate enough to eventually be used in court to prove impairment.
When new technologies and innovative methods of collecting objective evidence are developed, courts and lawmakers do not immediately embrace these technologies because it is important to protect the rights of the accused from bad science. Harvard Law Review explains how courts determine when "novel" scientific evidence can be admitted in court.
From 1923 to 1993, a standard established in Frye v. United States was used to determine if a specific type of scientific evidence could be admissible in court. This test is focused on whether a significant portion of the relevant scientific community has accepted the scientific principles underlying the evidence. The judge must determine the relevant scientific field and then must assess whether the evidence-collection methodology has been accepted by members of the field.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held the general acceptance rule was superseded by Federal Rules of Evidence. Rule 702 of Federal Rules of Evidence states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
Any new and innovative testing used to assess marijuana levels will need to pass muster under court standards for scientific evidence before it can be admitted in court in an OWI case.