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Standards for marijuana DUIs aren’t clear-cut, says defense lawyer

According to Jonathan Rooker, a Fresno criminal defense lawyer, the standards for marijuana DUIs aren’t as clear-cut as sometimes police officers and prosecutors make them out to be.

“They keep getting tougher and tougher, and moving the line, and sometimes fudging the line on where a DUI really is,” says Rooker, who appeared on Central Valley Buzz with Chuck Leonard yesterday.

It’s gotten so bad in a lot of cases that when a defendant gets into court “it feels like they’re trying to prove their innocence,” Rooker says. However, “it is the government’s burden to prove the crime beyond a reasonable doubt.”

Rooker cautions those accused of DUIs involving marijuana to look out for police officers trying to apply alcohol sobriety standards to marijuana. In particular, police officers often use field sobriety tests (FSTs) that have not been validated for marijuana to find evidence of impairment from marijuana use, Rooker says.

Even specially trained police officers, known as drug recognition experts, have fallen prey to less-than-credible methods to find evidence of impairment from marijuana. One of the most common tests, Rooker says, is when drug recognition experts check for marijuana use by looking to see if someone has a green tongue. According to Rooker, there is not one scientific article that supports the theory that a green tongue equals marijuana use, much less impairment from marijuana use.

Someone’s level of impairment is relative, according to Rooker, and someone’s tolerance can be dependent on any number of factors, including biology, age, and weight.

Surprisingly, a breakdown of the data from a recent government study on driving under the influence (DUI) actually leans to someone being safer – less likely to get into an accident – on marijuana than not, Rooker says.

Rooker also cautions viewers to not get too comfortable using their marijuana cards as shields against arrest by thinking that flashing the card will ward off a police officer. In fact, it could have the opposite effect, indicating to the police officer that he or she should check for impairment from marijuana, Rooker says.

Rooker says that the best tactic in many situations is to simply state that you refuse to answer the police officer’s questions

Leonard argues that a refusal to answer questions could be seen as a red flag. However, Rooker says that while it may be a red flag, showing a marijuana card is a “giant firework” signaling that a driver has marijuana.