Interviewer: If someone were to get pulled over for a DWI or DUI and they had indeed been smoking maybe a few days before, would it still be a good idea for them to disclose that information to the officer, or should they still be discrete about that and consult a lawyer?
Brian Sloan: It’s never a good idea to be open and honest with the officer. Not that you should lie to the officer, but you just need to stay quiet. Anything you say can and will be used against you in a court of law. That is told to you as part of your Miranda rights. Whether you are actually advised of your Miranda rights or not, you always have those constitutional rights under the Fifth Amendment. Shutting up is the best advice. If the officer asks you your name, you can give him your name. You can give him a form of identification. You should not be giving the officer any information that they can use against you. You should never admit to smoking marijuana. You should never admit to doing any drugs. You just don’t answer the officer’s questions. Tell them that you are invoking your right to remain silent.
Interviewer: If I were arrested and I was given a blood draw or a urine analysis, and it finds out that I’m at that safety zone as far as the hydroxy-THC goes, and I acknowledge and I find out that that’s not going to count against me, does that mean, necessarily, that I’m going to be home free?
Brian Sloan: Well, wait a minute, you mean carboxy; it’s carboxy-THC where you can’t be charged. If they find hydroxy-THC you can still be charged; you can still be convicted with hydroxy. Currently, they don’t test for that. The problem is that if the officer has probably cause to draw your blood or take your urine, and if they got a warrant or if they got your consent to get the blood or urine, the person’s not going to know what they are going to have in their system, whether it’s going to be THC, carboxy-THC, or hydroxy-THC; they’re really not going to know.
If someone was arrested for a DUI and if all they had was marijuana, if they hire me to represent them, and if I go into courts for my client and I am told that the case is being dismissed because all they found was carboxy-THC, I will refund the majority of my client’s money. The case is going to be dismissed. The dismissal had nothing to do with me. It’s certainly that the evidence wasn’t there. I refund all but usually about $250 just for the time that I put into it.
Interviewer: Let’s say I have failed the standardized field sobriety test, but this still comes out where, like I said, I’m in that safety zone as far as the marijuana goes, but they’re trying to take into account that I accidently said something like, “Oh, yeah, I was smoking last night.” If that was the situation, are they going to move on from that and say, “Okay, well, we have other evidence as well”?
Brian Sloan: The prosecutor still really does not have any evidence. If they only show that they have carboxy-THC, but the person did horribly on the field sobriety tests and admitted to smoking marijuana two days earlier, they still have nothing because carboxy-THC is not impairing. Why did the person do badly on the field sobriety tests? Maybe they have no balance, or they have other issues. It can’t be attributed to the carboxy-THC because carboxy-THC is non-impairing, so the case still should be dismissed. There’s no reason for the case to move forward and there’s no evidence for the prosecutor to use to move forward, other than the person has bad balance, and that’s not a crime.
