Tulsa Attorney BlogWith Metabolite DUI, You Still Have the Right To Remain Silent

metabolite duiA new law set to take effect Oct. 1 will make Oklahoma one of the most restrictive states in the nation with regard to drivers who have traces of marijuana in their system. Under the new metabolite DUI law, any driver found with any amount of marijuana – or inactive metabolites of marijuana – in their bodily fluids can be charged with DUI.

By the letter of the new law, it won’t matter of the marijuana was ingested out of the state – even overseas – days or weeks earlier. It won’t matter if you have a medical marijuana card, or even if you were prescribed a licensed synthetic form of marijuana dispensed by a licensed pharmacy. Welcome to the era of per se drugged driving laws.

Oklahoma DUI attorneys will likely to soon be answering calls from clients seeking defense against metabolite DUI charges in Oklahoma. Drivers have reason to be concerned. A driver can return from a Colorado vacation, or a mountaineering expedition to Washington state where they may have legally consumed marijuana under those states’ newly reformed marijuana laws. But the metabolites could still be in their blood.

A driver might have been exposed to second-hand marijuana smoke, or unwittingly eaten pot-laced food. A driver could even have a prescription to Marinol – a synthetic, licensed drug similar to marijuana that produces some of the same metabolites as marijuana.

The first thing drivers need to remember if they find themselves the subject of a roadside metabolite DUI investigation is they have a right to remain silent. While Oklahoma’s new law prohibits trace amounts of marijuana metabolites in driver’s bodily fluids, and provides penalties for drivers who don’t submit to tests, police still need probable cause to arrest a driver for impaired driving.

Ideally, the only probable cause that would give a police officer occasion to pull someone over on suspicion of DUID would be exceptionally poor driving. One can imagine, however, that a pro-marijuana bumper sticker along with a failure to use a turn signal when changing lanes, or failure to come to a full stop stop sign could be interpreted as evidence of impaired driving, could give some gung-ho officers idea they have probable cause to suspect impaired driving.

If an officer pulls you over on your way back from a Rocky Mountain vacation in Boulder, that’s probably a bad time start a political discussion about comparative marijuana laws. It’s definitely not the time to announce to an Oklahoma police officer that you legally smoked pot in a kinder, gentler state west of here. It’s not time to test your alibi about second-hand marijuana smoke at a Colorado music concert. Your statements could provide probable cause for an officer to arrest you. Once arrested, drivers generally don’t have an opportunity to consult an attorney before they’re asked to take a drug or alcohol test.

In most cases, however, police can only test those drivers who have been arrested for impaired driving. Without enough probable cause to suspect impaired driving, an officer should have no reason to make an arrest. A driver must either consent to testing or face loss of driving privileges. Unless there has been an accident where someone was seriously injured or killed, no arrest means no test. No consent means no test.

In the event a driver has been involved in an accident where a serious injury or fatality resulted, Oklahoma law says police can authorize medical personnel to proceed with tests as if they had a search warrant. An April 2013 U.S. Supreme Court opinion, Missouri v. McNeely,  requires police in most cases to obtain warrants before authorizing involuntary tests, but it remains unclear how that decision will affect Oklahoma’s law.

Under Oklahoma’s soon-to-be metabolite DUI law, the safest route for drivers would be simply to have no metabolites of marijuana or other Schedule 1 drugs in their system. But drug tests do sometimes go wrong. They sometimes result in false positives. And of course, they often show true positives. If you believe you’ll fail a drug test, the consequences could be a DUID (driving under the influence of drugs) conviction.

A driver will want to seriously weigh the consequences of a DUI conviction and the potential for subsequent felony DUI convictions before agreeing to a drug test, refusal of which would result in loss of driving privileges for several months, but no criminal conviction. The safest way for anyone who suspects they may have detectable levels of marijuana’s metabolites in their system to avoid trouble would be to not drive – for up to a month until the metabolites can reasonably be expected to have washed out.

Free Consultation: Tulsa DUID Attorney

When Oklahoma’s metabolite DUI law takes effect in October, some Oklahomans will inevitably find a new reason to seek legal counsel. Our office is prepared to represent drivers charged with DUI under any circumstances. We’re reviewing the new DUI laws and getting up to speed on relevant case law. If you’ve been charged with drunken driving or impaired driving, contact Wirth Law Office for a free no-cost consultation with a Tulsa DUI attorney, call the Wirth Law Office immediately at (918) 879-1681 (or toll free at (888) Wirth-Law) or submit the question form at the top right of this page.


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