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The Oklahoma Legal Group Blog

"Pot Breathalyzer" Set to Hit the Streets

Adam Banner - Wednesday, September 14, 2016

As I discussed in a previous Huffington Post article, I do not think it is a good idea to begin using a "pot breathalyzer" or any other portable breath test in zero-tolerance states such as Oklahoma. There is simply too much room for abuse. However, different standards and approaches may be appropriate is states which have legalized the consumption of marijuana in one form or another.

Companies such as Hound Labs intend on rolling out their products and technology to law enforcement as early as the first half of 2017

As I have previously discussed, such a device can and will have two very distinct effects depending on the laws of the state in which the breathalyzer is introduced and used. There is a fairly strict devide among the states, and those states which completely outlaw even the medicinal use of marijuana with a doctor's prescription are often times the states with the most severe punishments for marijuana possession and use.

In states such as Colorado, where marijuana has been legalized for recreational use, a "pot breathalyzer" would likely function just the same as a alcohol breathalyzer: the state will set a legal limit for the amount of detectable THC allowed before someone can be arrested for suspicion of driving under the influence of drugs. However; in zero-tolerance states such as Oklahoma, there will potentially be much more dire consequences for someone who is pulled over and tested with the marijuana breathalyzer.

In states such as Colorado, a person could be stopped while driving, tested with the pot breathalyzer, and not charged with a crime because the test didn't exceed the allowable limits set by law. There is no possibility for such a situation in Oklahoma though, because ANY detectable amount of THC would be sufficient to arrest an individual for driving under the influence of drugs. There is no leeway there.

Some may ask, "So what's the problem with arresting people with any detectable amount of THC?" The problem arises when one considers the half-life of THC and the duration that it may stay in someone's system. Some companies are looking at saliva tests as an alternative as well. Regardless, both tests could return some small indication of marijuana consumption, even if the marijuana was used hours earlier and the effect has worn off, that would have severe consequences in zero-tolerance states. It is a very slippery slope for states such as Oklahoma with extreme penalties for marijuana related crimes.

Still, the plus side for legal marijuana consumers is that a breath test, and even a saliva test, would more adequately reflect the recency of the use, as the residual results are not present in breath or saliva nearly as long as in urine. However, this does nothing to address the adverse consequences for individuals in zero-tolerance states that may have smoked previously, are no longer under the influence, but are caught behind the wheel.

As some have so eloquently put the problem, what's in the breath is not necessarily what's in the brain.






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