A couple of month ago I blogged about the difficulty law enforcement has proving that someone is driving under the influence of marijuana. The cops may suspect the person of driving under the influence of marijuana but because there is not a readily available and reliable chemical test as there is for alcohol it is sometimes difficult for the prosecution to secure a conviction.

That may soon change. A bill introduced in the California Senate in February 2016 would allow officers to use a hand-held electronic device which is able to test for the presence of marijuana and other drugs by use of an oral swab. The bill, if it becomes law, will allow chemical testing for drugs in the same way that chemical tests for alcohol are now used. As with alcohol testing, refusal to submit to the drug test would result in enhanced penalties including the mandatory suspension of the person’s license to drive for one year. The bill, SB 1462 is currently in committee.

Critics of the swab testing maintain that the technology is unproven and that the accuracy of such tests has not been scientifically demonstrated. The swab tests are being used in test programs around the country, including in some California counties. These programs are being monitored by the federal government. Should SB 1462 become law, there will surely be challenges to the swab tests and it may take years for the challenges to wind their way through the appellate courts.

The trend across the country is towards the legalization of marijuana. As more states legalize marijuana, law enforcement anticipates greater numbers of drivers on the road who are high on pot. Certainly state lawmakers see the need to speed up research and implementation of reliable chemical testing in the field. Although some marijuana advocates disagree, law enforcement considers drivers under the influence of marijuana to be a grave danger on the roads. In Colorado, where marijuana use is now legal, the Rocky Mountain High Intensity Drug Trafficking Area enforcement initiative reported that marijuana-related traffic fatalities increased 32% the first year the drug became legal.

Yet, prosecuting drivers who are under the influence of marijuana still poses challenges because marijuana-specific field sobriety tests are yet readily available and not necessarily reliable. In Colorado for example, the law provides that a driver with 5ng/ml or higher of THC in his or her blood “gives rise to permissible inference that the defendant was under the influence.” However, as I discussed in my previous post, since blood tests cannot be performed at the time of the stop, THC levels in the blood may dissipate by time a driver’s blood is drawn.

The states are funding research to find reliable field drug-testing devices. Last year the California Legislature approved a bill that authorizes UC San Diego to begin research on field sobriety tests for marijuana. There is little question that the difficulties law enforcement currently faces in proving that a driver was under the influence of marijuana will be resolved once a simple and reliable device for marijuana chemical testing is proven in the field.

If you have been arrested for driving under the influence, whether under the influence of alcohol or drugs, it is imperative that you consult with an experienced DUI attorney immediately. Please feel free to contact me to set up a confidential consultation without charge at or phone me at 949-474-8008.