Can police test you for driving high in Minnesota? With the legalization of marijuana in Minnesota, law enforcement agencies are adapting their approach to handling suspected impaired driving cases. A recent NPR article, “Driving High: The Challenges of THC DUI Testing“, highlights new roadside drug tests that police are piloting to detect THC impairment. But how reliable are these tests, and what legal concerns do they raise?
New Roadside THC Testing in Minnesota
Over the past year, the Minnesota State Patrol participated in a pilot program testing a new saliva-based THC detection device. The machine, which resembles a small coffee maker, is designed to detect THC in a driver’s saliva at a traffic stop. Minnesota is among several states, including Alabama, Indiana, Michigan, Colorado, and Wisconsin, that have tested similar roadside devices in response to the increased use of marijuana and concerns over impaired driving.
According to the NPR article, the challenge with THC impairment is that unlike alcohol, THC does not have a clear-cut impairment threshold. While alcohol breathalyzers strongly correlate with impairment levels, THC can remain in a person’s system for hours or even days after they are no longer high. This raises questions about the accuracy and fairness of using roadside THC tests as evidence in DUI cases.
Legal Questions Surrounding THC DUI Testing
Marie Pacyga, a criminal defense attorney at Ryan Pacyga Criminal Defense, has seen an increase in cases where police seek warrants for blood tests when they suspect someone is driving high in Minnesota?
However, Pacyga points out that the legal framework for THC testing differs significantly from alcohol testing. In traditional alcohol DWI cases, police frequently administer a Preliminary Breath Test (PBT) at the roadside. However, this test is not required, and police often fail to inform drivers that they have the right to refuse it. Furthermore, Minnesota law states that PBT results generally cannot be used as evidence in criminal court (with some exceptions).
THC roadside tests, on the other hand, are entering new legal territory. Unlike alcohol PBTs, there is currently no clear legal rule preventing oral fluid drug tests from being used as evidence against a driver in court.
Are Roadside THC Tests Constitutional?
A major legal question surrounding these new THC roadside tests is whether they violate constitutional protections against unreasonable searches. Pacyga explains that in Minnesota, police generally need a warrant to obtain a driver’s blood or urine sample. This is because bodily fluids contain highly personal information, and the courts have ruled that obtaining them without a warrant could violate the Fourth Amendment.
By that same logic, a saliva test—like those being piloted by law enforcement—may require a warrant before being administered. Pacyga notes that the same rule applies to collecting DNA from a suspect: “Cops need a warrant to collect a buccal swab (a swab from inside the cheek of a suspect’s mouth).” The legal system has yet to fully address whether these roadside saliva tests for THC will be treated the same way.
The Challenges of THC Impairment Testing
Even if these tests become widely used, proving impairment due to THC is far more complex than proving alcohol impairment. Unlike alcohol, which has a well-established legal limit (0.08 BAC), THC affects people differently and remains in the system for extended periods, making it difficult to determine whether a driver is actually impaired at the time of the stop.
The NPR article points out that while studies show THC can impair driving—by slowing reaction times and causing swerving—there is no universally accepted threshold for impairment. Colorado, for example, saw an increase in fatal crashes where THC was found in a driver’s system after marijuana legalization, but determining whether the driver was actively high at the time of the crash remains difficult.
As Ashley Brooks-Russell, a professor at the Colorado School of Public Health, states in the NPR article: “We’re all circling around the same question, which is, did you use recently?”
What You Should Do If Stopped for Suspicion of Driving High
If you are pulled over under suspicion of being high:
- Know your rights: You are not required to take a preliminary breath test for alcohol, and it is unclear whether you can refuse a roadside saliva test for THC. However, refusing certain tests after arrest (like a blood or urine test) can result in additional penalties.
- Stay silent: Do not admit to recent marijuana use, as anything you say can be used against you.
- Request a lawyer: If the police seek a warrant for a blood test, it is crucial to have an attorney involved to ensure your rights are protected.
The Future of Driving High in Minnesota
As marijuana legalization continues to evolve, so will the laws surrounding DUI enforcement. The introduction of oral roadside drug tests raises serious legal and constitutional questions that will likely be challenged in court.
Law enforcement officials argue that these tests are just one tool in their efforts to keep impaired drivers off the road. However, as Col. Matthew Packard of the Colorado State Patrol notes in the NPR article, “All that is, is confirming or supporting what you saw on the roadside… The test is kind of like the cherry on the top, but ice cream is still great even if it doesn’t have whipped cream and cherry.”
On the other hand, legal experts warn that relying too heavily on police training and subjective observations could lead to unfair prosecutions and wrongful arrests. Without clear legal standards for THC impairment, innocent drivers may face legal consequences simply for having used marijuana hours or even days before driving.
Conclusion: Be Informed, Protect Your Rights
For now, drivers should remain informed and cautious. If you or someone you know is facing THC-related DUI charges, contact an experienced criminal defense attorney to protect your rights.