The question is not IF Utah is going to implement breath testing for marijuana, but WHEN. Utah has a unique law called DRIVING WITH A MEASURABLE CONTROLLED SUBSTANCES (DMCS). Six other states have a similar law. Under this law, Utah Code section 41-6a-517, “a person may not operate or be in actual physical control of a motor vehicle within this state if the person has any measurable controlled substance or metabolite of a controlled substance in the person’s body.” Metabolite is the by-product of ingesting and “metabolizing” a drug that can be detected in the blood or urine.
The DMCS statute criminalizes driving a vehicle with any traces of illegal drugs in the body even if the driver is NOT impaired. This means people who legally smoke marijuana, in states like Colorado, and later drive a vehicle in Utah can be arrested for having traces of the marijuana in their system. In fact, marijuana can be detected in the blood for weeks after use.
The consequences of being charged under the DMCS have similar ramifications as a standard alcohol DUI. A person convicted of driving with a measurable controlled substance is required under law to pay a substantial court fine, serve 48 hours in jail or community service, obtain a substance abuse evaluation, court ordered supervised probation, and suffer a drivers license suspension of 120 days with no option for a work permit or restricted license. Again, the officer does NOT have to prove the driver was impaired by the drug or drugs to meet the legal requirements to convict someone under DMCS law, only that there is traces of illegal drugs in the driver’s system.
In many cases, officers stop vehicles with out of state plates, states where marijuana has been legalized, to ask the driver about using marijuana. Unfortunately, most drivers freely admit to smoking marijuana thinking there is no big deal since its legal in their home state or they have a valid prescription to use marijuana for medical purposes, which is all the officer needs to make an arrest under the DMCS law. After the arrest, the officer will request the driver to give a blood or urine sample that will detect prior marijuana use.
It is anticipated that police agencies will likely adopt the new technology of marijuana breath testing in the near future. Having the ability to quickly test a driver’s breath for marijuana use will undoubtedly lead to more arrests under Utah’s DCMS statute. It is feared that some officers will abuse the new technology by requesting or forcing drivers who they have nothing more than a hunch to believe the driver had previously used marijuana to submit to the roadside marijuana test and will then arrest them for smoking pot in the previous days or weeks even thought it has not been used recently enough to have an impairing affect on the driver’s ability to safely drive their car.
So drivers beware! DO NOT admit to using marijuana even if the use was in a state where the use was legal or even if the use was days or weeks before the traffic stop. If ever asked about drug use by an officer during a traffic stop (or under any circumstances for that matter) DO invoke your right to remain silent and advise the officer politely that you do not wish to answer any questions without first speaking to an attorney.
For more on this marijuana breath testing research, visit SeattlePI.com.