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How to Fight a Marijuana DUI in Georgia

Ask around and many people will tell you there’s no way you could get a DUI from using marijuana or CBD products. However, under Georgia law, cops and prosecutors frequently use the DUI-drug or DUI-multiple substances laws to prosecute suspected marijuana DUIs. This article will cover some of the most common issues involved in defending (and prosecuting) marijuana DUIs.

Being suspected of a DUI for marijuana use

Often, a routine traffic stop, even something as benign as an expired tag or burnt-out taillight, is used as an opportunity for cops to open a criminal investigation. Under Georgia law, cops must only have a valid basis to stop you- generally a traffic infraction- to approach you and begin conversation. Additionally, Georgia’s laws heavily favor the cops if any odor of marijuana is detected while this initial interaction takes place. In fact, the current state of the law allows officers to conduct a
“probable cause” search of your vehicle based on the officer’s belief there is an odor of marijuana coming from your vehicle. You can see how this interaction can quickly morph into a full-blown criminal investigation if you are suspected of marijuana possession while driving…

Generally, when we review marijuana DUI cases, we see that the officer begins noting everything about your interaction as soon as marijuana comes up. Your speech, your ability to communicate with the officer, your appearance, even how you do simple tasks like produce your driver’s license all become the subject of immense scrutiny. Once this investigation is launched, the officer’s goal is to distinguish everything you do from how they would suspect a completely sober person to act.

Admissions to marijuana possession or use; field sobriety tests

Admitting to any marijuana use while answering the cops questions will only heighten the case against you. Just like most all drivers will admit to having 2 drinks, 2 hours ago, cops expect you to admit to using marijuana earlier in the day. Of course, they will try to rebut this through all of their observations and make it seem that you just used marijuana shortly before driving.

There are currently no validated or peer reviewed studies that support field sobriety testing for marijuana use in DUI cases. However, cops still use the standard battery of tests, along with a few others, in order to try to make a case against you. The most common tests we see in marijuana DUI investigations include:

HGN testing (the eye test): during this test you are asked to follow the officer’s finger back and forth, while they make several passes in front of your face. Traditionally, this phenomenon- HGN- should not be present, however, as of lately, we are hearing officers begin to testify that they do see HGN present with suspected highly concentrated marijuana use (wax, dabs, carts, etc.)

Lack of Convergence: another eye test used where the officer will usually make 2 circles around your face before bringing his finger in towards the bridge of your nose, twice. Officers are looking for your eyes to either not converge (cross) at all, or to only momentarily converge before bouncing back out.

Walk and Turn and One Leg Stand: both divided attention tests are frequently used to investigate marijuana DUIs, even though they have never been studied as they apply to marijuana-only DUI investigations. These tests both involve you retaining and following multiple instructions as well as performing physical balancing tasks on the side of the road.

Modified Romberg Test: during this test, you are asked to tilt your head back, close your eyes, and estimate 30 seconds passing. Officers will testify to any sway, “eyelid flutters,” “body tremors,” and your internal clock during this activity. + or – 5 seconds is the range they are looking for to estimate the 30 seconds passing. Whether you are too fast or too slow, they will point out that it could be due to marijuana impairment. Talk about a can’t win…

Again, once there is an admission to using marijuana, or sometimes even just an odor of marijuana, cops will launch into an investigation using as many of these tests as possible to hammer down a DUI case. While you have the right to refuse all these pre-arrest sobriety tests in Georgia, cops do not have to legally inform of you your right to refuse, leading many drivers to feel they had no meaningful option other than participate.

Blood Testing for Marijuana DUIs

Under Georgia implied consent laws, officers have the right to procure a blood test from you if you are arrested for a marijuana DUI. While you technically have the right to refuse this testing, the implied consent scheme in Georgia will punish you harshly for doing so; you face a one-year license suspension without any limited permit. No, not even for work.

Given the punitive nature of these implied consent laws, many people make the spot decision to allow a blood test to be conducted after their DUI arrest. This testing will usually be done at the local jail, hospital, or even fire station, and the samples sent to the GBI for testing. There can be a 30–90-day delay in the prosecutor receiving these results back. You are not automatically entitled to the results and will not be mailed a copy. Your lawyer will be able to get these results through the formal “discovery” process once you are represented.

GBI blood tests currently test for 3 substances in marijuana cases: (1) THC, which is the psychoactive substance contained in cannabis; (2) 11-OH-THC or 11-hydroxy-delta-9-tetrahydrocannabinol, which is a metabolite of THC; and (3) THC-COOH or 11-nor-delta-tetrahydrocannabinol-9-carboxylic acid, which is a second metabolite of THC.

In our experience, these GBI toxicologists are very well versed in the testing procedures as well as the current literature of what these substances mean as they relate to potential impairment. These professionals will not generally be able to give an exact time of marijuana use or be able to testify that whatever the officer notes in his investigation are a direct result of marijuana. In other words, they will usually only testify in general terms as to the effects of marijuana use and leave it to the prosecutor to try to fill in the holes from there.

If you refused to allow the officer to test you blood, you will be looking at more harsh license consequences as noted above, however, you have deprived them of their most valuable evidence- assuming a blood test would have shown marijuana in your system.

Final thoughts: defending against a marijuana DUI

If you have been charged with DUI due to suspected marijuana impairment, it is essential to have a team of attorneys who knows how to defend against the scientific evidence that will be used to prosecute you. Even if you refused to submit to your blood being drawn, you must have a team who can rebut the notion that any other field tests can prove that you were impaired by marijuana.

Our team has been defending DUI charges for a combined 40 years, and more importantly, we are in court daily, keeping an eye on the trends as it relates to this body of defense work. We have seen a tremendous rise in people using marijuana and CBD products for very legitimate purposes, yet still ending up defending against a DUI charge. Our team throws the required resources behind defending each marijuana case we defend and will do the same for you.

Give us a call today or use our confidential contact form to reach out today and schedule your first consultation with us.