In Missouri, voters passed Amendment 3 on November 8, 2022. The constitutional amendment allows for recreational marijuana use. Recreational marijuana may substantially affect police investigations as well as DWI enforcement. Police officers have long used the ubiquitous “odor of marijuana” to justify searches of vehicles. Driving While Intoxicated charges are commonly brought when an officer suspects smells marijuana on a driver and suspects marijuana intoxication.
What is marijuana intoxication? At what level does marijuana use affect safe driving? These are difficult questions for courts to answer. Missouri law sets .08 as the blood alcohol level over which drivers are assumed by law to be impaired. In reality, some driver’s drive safely at the .08 blood alcohol level. There are also some drivers who drive poorly at lower blood alcohol levels. THC levels in the blood stream are more difficult to turn to than alcohol when attempting to measure impairment.
Washington State set a per se level of 5 ng/mL of delta-9- tetrahydrocannabinol (THC) in whole blood for driving under the influence (DUI). Missouri has not created a similar law. Marijuana users appear to vary more widely by comparison to alcohol in how THC levels affect safe driving. One challenge affecting DWI enforcement for drugged driving in Missouri is a lack of reliable on site testing. Missouri law enforcement does not have the means to quickly test THC levels roadside. When suspected of any form of drugged driving, suspects are generally taken to a hospital for a blood draw- a lengthy process most officers will avoid.
Now that recreational marijuana use has been legalized in Missouri, the issued of driving while intoxicated due to high THC levels becomes more pressing. Should a per se level be used such as in Washington State’s efforts? Or should safe driving be judged solely on the operation of the vehicle? Missouri lawmakers will need to determine their own approach to DWI drug enforcement as recreational marijuana use increases.
The odor of marijuana has long been a go to “indicator of criminal activity” which officers have used to justify otherwise illegal searches. Odors can’t be caught on video or revisited effectively on cross examination. Now that recreational marijuana use has been legalized in Missouri, one of law enforcements most effective justification to search a vehicle may be in jeopardy. An odor of marijuana no longer suggests illegal activity. Officers may be forced to learn new tricks.
In the meantime, Missouri continues to hold drinkers to a .08 standard while marijuana smokers do not face an equivalent numeric standard in determining intoxication. Due to differences in the nature of THC intoxication, THC levels may never be effectively and fairly monitored by a per se standard. Impaired driving enforcement efforts may need to evolve as society adjusts its definition of criminal activity. If charged with driving while intoxicated, driver’s will still need to search for the best DWI near them in order to find excellent defense counsel. JCS Law will continue fighting Missouri DWI charges in St. Louis, St. Charles, Jefferson County and the surrounding areas.