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The legalization of marijuana has brought a number of marijuana-related concerns to the forefront of public consciousness, and the United States has its eyes on Colorado with our little legal “experiment.”

Besides drug trafficking, one of the major concerns about legalizing marijuana is whether the number of drugged driving incidents will increase.

Well, the statistics for 2015 have come in and the number of marijuana DUIs has decreased…slightly. In 2014, there were 354 marijuana only citations issued, and only 347 marijuana only citations issued in 2015.

Even though there has been a 7-citation decline, driving while under the influence of marijuana and other drugs remains a huge issue. So the Colorado State Patrol has been using marijuana DUI devices as part of a 3-year pilot program to test drivers for marijuana.

Under the pilot program, troopers are testing the devices on how easy they are to use, officer safety, accuracy, cost, and other variables. The project has been going on since March 2015, and the State Patrol wants to have at least two years of data before picking the best device – or simply deciding that none of them will be effective.

The Colorado Attorney General’s office contributed $233,747 to assist with purchasing the devices. Currently, over 125 state troopers have one of five types of an oral fluid tester that requires a sample of the driver’s saliva to see if drugs – including marijuana – are present.

Colorado troopers were already able to have drivers perform roadside sobriety tests or submit to blood tests, but a roadside device – like a Breathalyzer for alcohol – gives them even more probable cause to make an arrest.

How Does the Device Work?

In order to even administer the test, state troopers have to ask drivers, “Would you like to be a volunteer in our DUI marijuana pilot program?” You read that right – without your consent, the trooper can’t take your saliva.

So what happens if you give your consent?

The inside of your cheek will be swabbed for saliva. The saliva is put into the device, which then takes about five minutes to provide an electronic readout that evaluates the presence of narcotics and, yes, marijuana.

These devices are currently being used only after a suspect has been arrested and their blood has already been tested, which is the standard protocol in checking for marijuana.

Right now, the devices can’t be used to influence the officer’s decision to make an arrest, but the results are discoverable and they could possibly come up in a suspect’s DUI case. Although – so far – none of them have.

Do These Devices Even Work?

Numerous researchers say that it doesn’t matter what device is being used, the results are often useless. Alcohol spreads throughout your body from your saliva and your breath, eventually moving into your lungs and bloodstream. So a Breathalyzer or blood test can pretty much tell you how much alcohol is in your body.

Marijuana, however, works differently than alcohol. When you have high levels of THC in your blood, you’re not necessarily at the “highest” or most impaired point. Eating marijuana as opposed to smoking it also makes it less likely to show up in the blood. And since THC is fat soluble, it can quickly leave your bloodstream, while being stored in your body’s fat. This THC storage can leak out, and a blood test might show elevated THC levels – even if you didn’t smoke that day and are completely and utterly sober.

In other words, the science of testing for marijuana isn’t an exact science, and it’s going to continue to be problematic for law enforcement officers. That’s why you should fight any marijuana-related drugged driving charge with the help of an experienced Colorado DUID attorney who will highlight the flaws in these tests to get your charges reduced, dismissed, or dropped.

About the Author:

Denver-based criminal defense and DUI attorney Jacob E. Martinez is a knowledgeable and experienced litigator with a record of success providing innovative solutions to clients facing criminal charges of any severity. Mr. Martinez has been designated a Top 100 Trial Lawyer by the National Trial Lawyers and has been awarded both the Avvo Client’s Choice Award and Avvo Top Attorney designation, evidencing his reputation for his exemplary criminal and DUI defense work and high moral standards.