Decriminalization of Marijuana: Effect on DUIs and Probable Cause

Last week I wrote a blog  regarding Rhode Island's recent decriminalization of possession of less than an ounce of marijuana. Given some reader comments and my conversations with other attorneys, I wanted to update the Patch community with what I see going forward on this issue.

Q: Can the police arrest someone for DUI for driving while under the influence of marijuana?

In Rhode Island the blood alcohol limit is .08. However, a breathalyzer reading of above .08 is not required for a DUI charge or conviction. Usually when someone refuses a breathalyzer and is then charged with a refusal, you will likely see that they are also charged with DUI. The police are able to charge the DUI based on other evidence, including their general observations (slurred speech, odor of alcohol, the person's driving...etc) and the results of the field sobriety tests.

Also, the impaired driving laws are written to include both liquor and other intoxicating substances. So police are able to charge persons who drive impaired (whether that be due to marijuana, prescription drugs...etc) without the necessity of a THC test. So like alcohol, a DUI charge could be made and a conviction could be sustained on police observations (observing someone smoking while driving, erratic driving, the odor of burnt marijuana, slurred speech, red eyes...etc) in the absence of a THC test.

So while I cannot know what effect decriminalization will have on the number of impaired drivers on the road, decriminalization itself will not affect the police's ability to arrest persons for driving while impaired by marijuana.

Q: If the police smell marijuana, does that still give them probable cause to stop and search a person or vehicle?

This is a tough question to answer as the Rhode Island courts have yet to hear this issue. In 2009, Massachusetts enacted a nearly identical decriminalization law, and in 2011 the probable cause issue reached its Supreme Judicial Court. In Massachusetts v. Cruz , police officers saw a man sitting in a parked car smoking a small cigar. When they approached him, the officers testified that they smelled the "faint odor" of marijuana. The officers took this as probable cause, searched the man and his car, and found 4 grams of crack cocaine. The question was, given that possession of less than an ounce is not a crime, but rather a civil offense, did the officers have the authority to seize the suspect and search him and his vehicle? 

The Court said no. "By mandating that possession of such a small quantity of marijuana become a civil violation, not a crime, the voters intended to treat offenders who possess one ounce or less of marijuana differently from perpetrators of drug crimes," Justice Ireland wrote. "Here, no facts were articulated to support probable cause to believe that a criminal amount of contraband was present in the car. We conclude, therefore, that in this set of circumstances a magistrate would not, and could not, issue a search warrant. Because the standard for obtaining a search warrant to search the car could not be met, we conclude that it was unreasonable for the police to order the defendant out of the car in order to facilitate a warrantless search of the car for criminal contraband under the automobile exception."

While the Rhode Island Supreme Court has yet to hear this issue, it is possible that they, or a district or superior court, could reach a similar conclusion. However, note that possession of more than an ounce, delivering or selling marijuana, and driving while under the influence all remain crimes. Therefore it is easy to imagine scenarios where the smell of marijuana, coupled with other factors could give a police officer probable cause to believe one of those crimes had been committed.

Questions? Shoot me an email at AThayer@srt-law.com 

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