Up in Smoke? Marijuana Decriminalization and DUI

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Up in Smoke? Marijuana Decriminalization and DUI

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As of Thursday, July 17, 2014, it is no longer a criminal offense to possess an ounce or less of marijuana in the District of Columbia. Perhaps more importantly, police can no longer claim that they have reasonable suspicion to stop and search a person based on the smell of burnt or unburnt marijuana. Prior to this change, MPD officers often relied on their seemingly super-powered sense of smell to justify pat-downs of countless young black males in Washington, D.C. Often these searches led to the discovery of other illegal contraband, and led to criminal charges more serious than possession of a joint or two. Now, however, even if you rub a dime-bag all over your body and hair until you smell like a grow-house, MPD has no choice but to let you go on your merry way. Incidentally, that doesn’t mean that police can’t approach you and ask for your permission to conduct a search or pat-down. But of course, we all know that the answer to that request under EVERY circumstance is a very firm “no thank you.”

The new law, however, does not apply to police investigation of a Washington, D.C. DUI. What does that mean for those driving around with their decriminalized bag of weed in their glove compartment or center console? That depends. Decriminalization obviously does not mean that one can drive around D.C. city streets while high on marijuana. That is, and will always be illegal, and will earn you a DUI arrest, and a stern, well-deserved scolding from your mother. Taking that into account, the new D.C. marijuana statute allows police officers to further investigate a possible DUI based on the smell of marijuana in a vehicle (or watercraft, for you pot-smoking boat owners). So if you are pulled over in Washington, D.C. , and Officer Friendly thinks you might be driving under the influence, the smell of marijuana in your car will likely justify a search. Anything illegal he finds during that search will be considered lawfully obtained, including more than the decriminalized one ounce of marijuana. Moreover, if marijuana is discovered, and the officer believes he has probable cause to arrest you for DUI, it is very likely that you will be asked to provide a urine sample back at the station. A positive test for marijuana will land you in court, and you should probably start looking for a Washington, D.C. DUI lawyer.

It remains to be seen what impact the new law will have on D.C. traffic stops. Will MPD officers continue to use the smell of marijuana in a car to justify a search, even in the absence of legitimate DUI suspicion? Will judges throw out evidence discovered in these searches if they believe that police are using DUI as a pretext for the search? There are a lot of unanswered questions, but one thing you can be sure of: D.C. will continue to vigorously prosecute DUIs, and police will continue to find any reason they can to search your car when they conduct a traffic stop. Knowing the law, your rights, and an experienced Washington, D.C. DUI lawyer will give you the best chance of staying out of serious legal trouble.

Contact Jay Mykytiuk at JPMLegal for a free consultation.