In this segment of Law Talk, we want to talk with you about DUIs. We're going to focus more on the laws around marijuana intoxication because they are so new, but many of the same procedures apply. We'll discuss the process by which a police officer can pull you over, ask you questions, perform field sobriety tests on you, and detain you based on their suspicion of drug and/or alcohol use. Then we'll talk about what happens if you are arrested, and what the booking process is like at the police station. Most importantly, we'll talk about your rights and how and what you should communicate or provide to the police during this whole encounter.
Since the legal use and sale of recreational marijuana is so new, the laws that govern marijuana are new and relatively untested. The amount of THC (the chemical that makes you high) that can be in your blood before you are considered legally impaired, was actually a compromise so that, like alcohol, there could be a specific, measureable number that could be used by police. In our opinion, and the opinion of a number of researchers, the THC threshold is arbitrary and really has nothing to do with your ability to operate a motor vehicle. This doesn't mean that police won't want to do the test; but it does mean that the test may not hold up in court.
Let's be clear: an officer is always going to be on the lookout for an impaired driver. Whether you are erratically weaving between lanes or you simply have a tail light out, if an officer pulls you over, they are going to look for signs that you are impaired by drugs or alcohol.
Roll Down Your Windows
Regardless of whether you have been consuming alcohol or marijuana, or how much you have had, the first thing you should do if you are pulled over is to immediately roll down your windows. Even if you have not smoked a joint, if you were at a party where others were using pot, the smell could be on your clothing or in your vehicle. Or if you're driving a vehicle and have a passenger that has been drinking, your car may smell like alcohol. Why give the officer the opportunity to develop probable cause and submit you to further questioning? If an officer smells marijuana, alcohol, or other drugs in your car, or sees evidence of their use, they now have the evidence they need to proceed to ask you more specifically about your use of these substances, perform field sobriety test on you, or even arrest you.
Officers will also be on the lookout for signs of drug use in your eyes. You could simply have tired eyes from a long day at work or be having allergy problems, but if an officer sees red or watery eyes, they can use that as probable cause to escalate the situation. In our experience, most officer's reports on DUI arrests begin with a description of smell of substances in the vehicle and/or that the suspect had red, bloodshot or watery eyes.
As we said above, while declining to answer questions or submit to field tests is your right, it is very important that you remain calm, courteous and polite. Becoming belligerent, rude, or resistant will only escalate the situation and give the officer reason arrest you on other charges. Also, remember that the officer is a person too, and they will likely respond in kind. If you are mean and rude, you can expect the same in return. In our personal experience and experience working with clients, people who are calm and courteous to the police are more likely to receive a better result in the end. You might still be arrested, but you're more likely to be treated respectfully.
Do Not Volunteer Information
If an officer suspects you are under the influence, they will begin a line of questioning to try and determine if you have used a controlled substance. Be aware that you are within your rights to refuse to answer these questions. That does not mean that you should be rude, disruptive or combative. But it does mean that you may politely decline to answer. Law enforcement is supposed to tell you that your answers are voluntary, but it is not uncommon for them to gloss over or play down this step.
Declining to answer does not mean the officer won't keep trying. In fact, they may become more pushy, aggressive or even angry in their attempts to get you to answer their questions. But remember: it is your choice whether or not to answer questions and you have a legal right to decline.
Decline To Take Field Sobriety Tests
Just like answering questions, submitting to field sobriety tests is entirely voluntary. Whether it's a breathalyzer or coordination test for alcohol impairment or a drug recognition expert test for marijuana impairment, the goal of these tests is to gather further evidence against you, and you have the right to refuse. Again, calmly and courteously decline.
Comply with Commands
While you are not required to answer questions, you are required to comply with physical commands. If the officer tells you to get out of your vehicle or put your hands out where they can be seen, comply with those commands. This is not just about your rights -- it's also about personal safety for you and for the officer. If an officer feels physically threatened, he may be with his or her legal rights to take action to subdue you by force.
You May Be Arrested... Do Not Resist
If you do decline to answer questions or submit to field sobriety tests, the officer is still within their rights to arrest you if they feel they have probable cause that you are under the influence. In fact, by refusing to volunteer information, the officer may threaten to arrest you. The best response is acknowledge their right to arrest you. Remain calm and cooperative and allow yourself to be arrested. Do not resist.
Continue To Comply
If you are arrested and brought to the police station, continue to behave in the same manner. You may be presented with forms that question your use of marijuana or alcohol. These are more attempts to gather evidence against you. Just like the field questions and tests, these are entirely voluntary and you may decline to take them.
If you are asked to take a breath test, you will have a decision to make, because in the state of Washington, the Department of Licensing may suspend your license solely for refusing to take the test. However, you do not have to make this decision alone.
Call an Attorney
All suspects are offered the right to talk to an attorney. Even if you do not have a specific attorney you can call, the police department will have the number of an attorney on call as a public defender that can provide you advice on how proceed. Before you answer any questions or take any sobriety tests at the police station, take advantage of this right.
When you talk to an attorney, even if it is a public defender, that conversation is privileged. In other words, it is private and anything you say is protected and confidential between you and the attorney. This is your opportunity to explain the details of your situation, including whether you have used marijuana, alcohol or another substance.
Based on your conversation, the attorney will recommend to you what to do next, including whether or not you should agree to take a blood or breathalyzer test. More than likely, the attorney will recommend that you submit to the tests, but to not volunteer to answer any questions. Cooperate with the test, but do not say anything.
Time Is Your Friend
Finally, remember that time is your friend. If you do you have a substance in your system, the longer the time from which you ingested it, the more of it your body has been able to metabolize and pass out of your system. Some tests, like a breath test, must be performed within a specific time window to be considered valid.
You Probably Won't Go to Jail
In our experience, most people who are cited for a DUI will not go to jail. That is, as long as you have been calm, polite and respectful.