Mimesis Law
21 May 2019

Cheeky Enforcement & The California Pot Conundrum

July 11, 2016 (Fault Lines) — This November, proposition 64, The Adult Use of Marijuana Act, is on the ballot for California voters to decide. Seven other states have similar measures before voters as well. While supporters of the initiative have about $6 million in their war chest, compared to maybe a couple hundred thousand raised by the opposition, you might not want to pick out that celebratory bong just yet. California can be much more conservative than people think.

Anyone who has ever driven on a busy California street or congested freeway has experienced the large clouds of pot smoke emanating from the vehicles of heavy tokers and wafting through their own; permeating the interior for several minutes or more.

It is conceivable that you could be pulled over for some infraction while your car smells like someone else’s weed; if the cop claimed he smelled it, you would be hard put to deny it, and your claim that it came from another car would likely fall on deaf ears.

No problem, right, because you have no weed in your car. Not exactly because, like neighboring states Washington and Colorado who have already legalized recreational marijuana, the enforcement mechanism for keeping the roads clear of stoned drivers is practically non-existent.

When it’s non-existent, the state is trying new thing or things that save them money. For example, there’s the $2 roadside drug test that is sending tens of thousands of people to jail all over the country because it consistently gives positive results for narcotics from samples of aspirin, caffeine and possibly even crumbs of food. Pair that with untrained officers administering the test and you have a disaster.

Currently in California, they have very little in the way of detection for driving under the influence of marijuana. It mostly comes down to an officer’s suspicion and observations. He saw you smoking it , or pulled you over for some other reason and smelled it, or maybe observed the pile of roaches cascading from the ashtray in your car.

There are a couple field sobriety tests based on the notion that stoned people cannot perform divided attention tasks like standing on one leg and walking and turning while high on pot, during which you are observed by the officer who subjectively decides whether you are stoned or not. So if this cop thinks you are stoned or wants you to be stoned because he already took the time to pull you over and get you out of the car, then you could be taking a trip to jail.

Even worse is that cops are now testing a cheek swab kit at sobriety checkpoints in California. Republican Senator Bob Huff of San Dimas who authored the bill responsible for the existence of the test claims that:

Sadly, we’ve become a nation of self-medicating, careless people.

This seven minute test is supposed to detect pot, opiates, methamphetamine and pain killers. It couples a swab with a hand held electronic device and is administered by an officer. None of this has any basis in science and there have been no published studies proving it to have any correlation or ability to accurately test for drugged driving.

There are several companies testing a breath device that they claim will measure THC levels in the same way the breathalyzer does for alcohol. At least one of these will be doing clinical trials in conjunction with the University of California. Possibly, this is a ray of hope. In the meantime, drive with your windows up, vacuum your car regularly so you don’t go to jail for food debris and avoid having Mucinex, chocolate, aspirin, chocolate, and oregano in your car, because they too generate false positives.

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