Jonathan Rooker is an Experienced DUI/DWI/BUI/DUI-Drugs Criminal Defense Attorney based in Fresno California and serving the greater central valley region. DUI/Criminal defense comprise a vast majority of his practice area. He commonly builds a defense based upon his specific education involving toxicology, DUI, and Criminology background which includes ongoing course work at the Masters Level for Forensic Toxicology. If you have been arrested or accused of DUI Drugs in the Fresno Area, Call Criminal Defense Attorney Jonathan Rooker to assist you with your defense.
A Growing Trend
MEDICAL MARIJUANA DUI
Drugs, both recreational and prescription have become a fast rising source of alleged impairment when a person is cited for Driving Under the Influence(DUI) or Driving While Impaired (DWI). All too common I hear the same story. A client is pulled over for an brake light not functioning properly, a license plate illuminator light being burned out, or no front license play. The officer will smell the odor of Marijuana emitting from the person or cab of the vehicle. The officer will ask, "Have you been smoking Marijuana?" and the all too common reply is, "Ya, I have my Medical Marijuana Card." Next thing words out of the officers mouth are, "Please step out of the vehicle."
I've heard good people ask the following question many times.
I got a DUI because I smoked my medical marijuana, I have have a cannabis card but they arrested me anyways. Can they do that?
What happens next?
The officer will likely ask you to perform some field sobriety tests. However, an officer trained specifically to test for drug impairment will ask you to perform a DRE, short for Drug Recognition Exam. This test is much longer, and more specialized examination, geared toward the recognition of impairment due to narcotics or recreational drug. I've read reports where certain factors, including "Green tongue" associated with smoking Cannabis or being able to visually observe the Carotid Artery "Pulsating" are used, quite convincingly as factors to upon which the officers base probable cause needed to justify and arrest. Later, they are used in court to try and convince a jury a person was impaired at the time they were driving the automobile.
After the Exam- an Arrest likely occurs.
Once the officer, who already seemed convinced you were to impaired to drive an automobile finishes a quite lengthy investigation of when the officer (Likely) concludes you are under the influence, a position he likely had before he spent the time examining you for impairment, he will place you under arrest. He will likely use the results of the test, that he gave you, after learning you use Marijuana, and results that he dictated into the officer's report, to show why he chose to arrest you. These same results, that in his mind justified arresting you for DWI/DUI to begin with, will then be testified to at trial, along with the officer's, "Background, training, and experience" to show how the "totality of the circumstances" indicated you were too impaired to be driving an automobile.
Court comes next.
A Deputy District Attorney, likely fairly new, and looking to gain trial experience will be handling the prosecutions case. A resolution of a plea to a lesser charge, that helps keep your criminal record clean or manageable will be "beyond their discretion" and you will have to either plead guilty to the charge, or fight it at trial.
What evidence is used at trial?
Driving pattern showing impairment- This can occur if the driver was, or the report claims they were swerving, driving erratically, weaving, crossed a line, failed to stop before the limit line, or failed to use a blinker. All things we see drivers do regularly, but when under the microscope of the government in a trial situation, they appear worse than they really are.
Medical use Pattern- The first evidence an officer likely solicits from a driver suspected of using Marijuana is when the last time they smoke Marijuana, and how much. This is thrown back at the driver when he/she is brought to trial.
Answers to questions the officer asks- "Do you feel the effects of the Marijuana?" The effect that is felt might be as simple as relief from a debilitating headache, or the absence of back pain, but in court the statement, "Yes" in response to this question can lead to a conviction.
Results of the DRE- At this point you will probably have learned that you didn't have to answer these questions, or submit to the DRE, and you are feeling pretty bad. Then, the officer gets on the stand and testifies to all the "errors" you made on the DRE, and the clues of impairment that were present. Many believe the tests are designed to fail, but also it may seem the method is designed to fail. A persons suspects another is impaired. Gives an exam, grades, and judges their results. No pass/fail is involved, and you must only cite, "totality of the circumstances" to justify your arrest. Imagine having been given a test, with no pass/fail line, no fair review able to be conducted of grading system, and a failing grade assigned. Then asking why you failed, only to be told, "totality of the circumstances" was the reason. The scientific method alone is not present, as there is no double blind exam being given. The person conducting the experiment has one subject, they suspect is impaired, and grades the results of their experiment themselves, with no review possible.
In short, anything you say or do can be used against you.
In the aftermath of this mess, many clients just wish they hadn't volunteered their Medical Marijuana use. Regret answering any questions. Wish they had declined the (DRE) Drug Recognition Exam and/or Field Sobriety Tests (FST's)performed.