Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW

The Oklahoma Legal Group Blog

The "Marijuana Breathalyzer" Update

Adam Banner - Thursday, January 15, 2015

As the number of states which allow legal marijuana in one capacity or another continues to grow, law enforcement and other entities are looking for ways to better detect "stoned" drivers.

Consequently, marijuana breathalyzers are now being developed in an attempt to help combat driving under the influence of drugs. I have laid out my opposition to these untested devices in one of my recent  blogs for the Huffington Post.

However, as some quick-minded commenters have mentioned, the marijuana brethalyzer being developed by Washington State University I mention in the above-referenced article is not the only tool currently under development in the hopes to crack down on "drugged" driving.

There is also apparently a prototype being developed by the Cannabix Technology, Inc. company located in Vancouver. According to the company's website, Cannabix Technology has the exclusive North American license for said breathalyzer; however, the device is still currently in prototype development, and there is not a whole helluva lot of other information available for verification (except options for investing) at this time. All information points to the Cannabix breathalyzer being purely a breath test, so this seems to be much less envasive than a saliva test.

One such saliva test is the Drager Drug Test 5000, which is currently being "tested" in Kern County, California. According to local reports, law enforcement allege that the Drager Drug Test 5000 gives quick and accurate results, while the criminal defense bar in the area retort that the machine is nothing more than a screening device with "a high error rate for false positives."

A new saliva or breath test would most likely need to be approved by the Oklahoma Board of Tests for Alcohol and Drug Influence before being adopted by a large portion of Oklahoma law enforcement agencies. However, there is a very real possibility that the Oklahoma Board of Tests for Alcohol and Drug Influence would adopt a roadside test if the science behind the device proved reliable enough to meet its standards.

Sadly, I am not sure where their standards lie; after all, this is a state that still allows for a per se finding of one being "under the influence" if he or she has any trace of a Schedule I drug (including marijuana) in his or her bloodstream. I have checked the Board of Tests website, and I have not found anything regarding a marijuana breathalyzer in the Board's 2015 Rule Making or 2015 Notice of Rule Making Intent. 

As I have said before, I am completely fine with the introduction of a marijuana breathalyzer if the results are accurate and subject to third party scrutiny; however, it does not appear either of the two devices I have discussed are ready for prime time just yet in that critical aspect.

Right now, this is probably for the best. Many of the new "marijuana breathalyzers" which will likely flood the market in the next few years will be based on flawed science or highly unpredictable variables. It will likely be some time before a truly reliable few rise above the rest.

More research is needed into exactly what level of concentration is necessary before a driver is impaired. Oklahoma needs to focus on removing its zero-tolerance laws regarding Schedule I drugs (including validly prescribed medication taken pursuant to a doctor's instructions). But the idea of a reliable and accurate marijuana breathalyzer is at least less intrusive than a forced blood draw, pursuant to a warrant, at the hand's of law enforcement.

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