As several states begin to relax marijuana laws or legalize, we are likely to see an increase in DUI arrests for those who operate a vehicle under the influence of marijuana. There are companies developing THC breathalyzers that will detect an oral presence of marijuana consumption, but authorities have not implemented any such devices yet.
Those who are suspected of DUI or driving under the influence of drugs like marijuana are subject to undergo tests under Connecticut's CT implied consent law. And for now, urine tests for marijuana consumption are used by authorities are used for purposes of DUI.
DUI Laws when stopping the driver
DUI or driving under the influence of either drugs, or marijuana, or alcohol is strictly prohibited by law. The Appellate court has interpreted DUI to mean that a driver's nervous system or is otherwise mentally and physically affected to the point where he or she lacks sound mind to function to safely operate a vehicle because of the alcohol or drugs. State v. Gordon, 84 Conn. App. 519, (2004)
When a police officer notices a driver driving poorly or erratically, the officer has reasonable suspicion to stop them for questioning and to determine if there is probable cause to arrest. An officer may find probable cause to exist not only from poor driving performance, but also unusual behavior, the way in which the driver communicates, or other objective signs of intoxication.
If there's enough circumstantial evidence to suggest that a driver is DUI, the officer will ordinarily administer an initial breathalyzer test to determine the level of his BAC or blood alcohol content level. However, you may request other tests upon arrest, such as a blood or urine test. The prosecution may request further tests in case the results are not consistent.
In Connecticut, the driver has to submit to a chemical test per CGS § 14-227b (a) under the state's implied consent law. For DUI of alcohol, if one's BAC level is 0.08% or higher for drivers at age 21 or older, or if the driver is below 21 of age with BAC level of 0.02%, the driver will be arrested and can be convicted of DUI. There are currently no such limits for THC or clear guidelines for even legal marijuana users who use it medicinally.
Refusing a Chemical Test is Generally a Bad Idea
Provided that there is proper documentation, the state prosecutor may use a refusal to submit to a chemical test as evidence against you at trial, as consciousness of guilt and proof of intoxication.
Additionally, if you refuse a chemical test your license will automatically be suspended for forty-five (45) days under CGS § 14-227b (b)) by the Department of Motor Vehicles. This is also referred to as an administrative suspension per se.
However, Connecticut DUI law is silent when it comes to drivers found to be driving under the influence of drugs, including marijuana. This only means that the DMV does not suspend or revoke the license when found to be under the influence of drugs, as they do to those under the influence of alcohol.
Circumstances in Which Police May Order a Urine Test
There are instances when police can order a urine test in order to test for the presence of drugs when police suspect you are DUI. Here are some common questions raised about DUI laws.as it pertains to drug.
1. What are the conditions observed before a police officer requests for a urine test when a driver is suspected of DUI violation?
The following reasons are used accordingly to undergo toxicology laboratory tests as requested by the Department of Emergency Services and Public Protection or DESPP:
- The BAC level device is not available at the time of arrest or it is not working accurately.
- The impairment was observed but the result of the breath test does not match it. The officer may request for a breath test, urine test, and blood test to confirm the result.
- The breath test was not provided adequately on the time of arrest.
- The driver shows signs that he is under the influence of drugs, and the police officer is certain of it.
2. When is the urine test administered for DUI?
Connecticut CT DUI law requires urine tests upon arrests in accordance to the DESPP requests. The toxicology laboratory is usually conducted for 20% to 30% of drivers arrested.
3. When to obtain the urine sample or BAC test?
Upon arresting a driver for a DUI violation, the police officer may administer a BAC test right away or within two hours, to be followed by a urine test. The first test may give a negative result, but this does not mean that the urine test is no longer required. As explained above, the urine test will still be administered whether or not the BAC test provided 0.08% level or higher. This is to ensure or confirm the use or intake of alcohol or drugs before or during driving. (CGS § 14-227a (b))
4. What happens when the driver refuses to give a urine sample? Are the police allowed to force you to give a urine sample?
A driver cannot be forced to have his urine samples taken, or any chemical test for that matter because you have a substantive due process right to bodily integrity, although as discussed your refusal will be used as evidence against you. You have the option to comply or refuse the test, but this is done in accordance to the law (CGS § 14-227b (b)) wherein the officer has to advise him of his rights. Also, the officer should follow the CGS § 14-227a (b) 1 which states that a defendant must be afforded reasonable opportunity to consult with his or her lawyer before submitting to a urine test where the defendant has consented. Although a refusal can be used against you by the state at trial, there is no penalty or sentencing enhancement in the books yet for refusing a chemical test in and of itself. This is not the case under California DUI law, which is typically a legal trend setter in DUI law.
5. What does the law says when the urine test resulted in marijuana traces?
If the urine test results show traces of drugs or marijuana, is is not direct or prima facie evidence that you were DUI, but it can be used in conjunction with police testimony as evidence of DUI.
The state does not have to prove a certain quantity of drugs, only that any quantity impaired your driving to the point where you were “under the influence.” State v. Weisenber, 79 Conn. App. 657 (2003)
6. Can one still be convicted of DUI even if there is no trace or odor of drugs or marijuana in the car, and that it has been 30 days after the elements were taken?
The short answer is YES. A slight trace may be enough for the court to convict you of DUI if it causally affected your driving ability. This has been criticized because even traces of marijuana can stay in your system for several weeks.1 However, here is little to no chance that someone who consumed marijuana weeks ago would affect or impair their ability to operate a vehicle, and yet nonetheless, even trace amounts can be strong evidence of DUI even where there's no causal relationship to what could just be bad driving one day.
The urine test is efficient enough to detect traces of drugs or marijuana. The urine sample can nonetheless help to prove that a driver's behavior or impaired driving was due to the presence of drugs or marijuana in his blood, thus affecting his function.
7. Is the DUI for alcohol case different from the DUI for drugs case in terms of prosecution?
Based on state law, the prosecution for the case for DUI for alcohol is different from the case for DUI for drugs. The prosecutor will use the results of the police reports, defendant's behavior, breath test, and BAC level of 0.08% or higher for the DUI for alcohol. Moreover, for DUI for drugs, the driver's behavior will still be assessed upon stop and the result may lead to the need for urine tests. Although the required minimum level is not applicable to convict the driver of a DUI violation for drugs, urine test results showing trace amounts is enough to prove that you are driving under the influence of drugs.
8. Is the urine test efficient to distinguish whether the marijuana ingested was from second-hand smoking or from direct inhaling?
It is unlikely that a urine test will produce a false positive for traces of marijuana stemming from second-hand smoke. If the test resulted in a positive result for marijuana inhalation or use, it means that the driver directly inhaled marijuana and that it is not from second-hand smoke. The DESPP toxicology laboratory states that traces of marijuana in the body system as a result of urine test are due to direct inhalation. However, studies have shown that secondhand smoke inhaled in an unvented area with heavy marijuana smokers in some cases can result in failure of a drug screen.2