Pot Breathalyzer Being Developed to Detect Drugged Drivers

Posted in General on January 12, 2015

A marijuana detecting breathalyzer is in the development phase, and I am sure that law enforcement officers in the U.S. would welcome using such a device during drug-DUI investigations. The creators of the Cannabix Breathalyzer claim that it would allow the police to determine if a person had recently smoked marijuana. Pennsylvania officers often use alcohol breathlayzers, commonly called a portable or preliminary breath tests (PBT), during roadside drunk driving investigations to see whether or not a driver had been drinking alcohol. If the officer thinks that there is probable cause to believe that the person was driving  under the influence, then the person is arrested and required to submit to a more intensive test to determine the actual blood alcohol concentration. The marijuana breathalyzer would be used in the same fashion.

Admissibility of Breath Test in Pennsylvania DUI Case

While PBT or breath tests are routinely used by the police in DUI investigations, the actual reading on the device is not admissible in court. The officer is permitted to testify that the test produced a positive result for the presence of alcohol on the driver’s breath, but the officer is not permitted to testify as to the actual number on the device. The reason that the specific reading is not admissible is because the PBT tests are not overly accurate. If the marijuana breathalyzer actually gets to market, I expect that its admissibility in court would be the same as the PBT’s admissibility.

Could a Marijuana Breathalyzer Be Used in Marijuana Possession Investigations?

The police in the State College area often use breath test devices in Underage Drinking and Public Drunkenness cases. A charge of Underage Drinking under 18 Pa.C.S.A. § 6308 prohibits a minor from possessing, purchasing, transporting or consuming alcohol. Most charges are based upon the “consumption” portion. In order to prove that a person had been drinking, the officer can use a breath test device. Surprisingly, while many officers use a breath test, the actual breath tests results are not generally admissible at an Underage Drinking hearing if the appropriate objection is made. If a person does not object to the admission of the test result, then the judge can consider it. If the breath test result is admitted into evidence, it clearly shows that the person had been drinking or consuming alcohol.

With regard to marijuana, the Possession of a Small Amount of Marijuana charge under 35 P.S. § 780-113(a)(31) only prohibits a person from possessing marijuana and does not make it illegal to have actually smoked, inhaled, or otherwise consumed the marijuana. Therefore, a marijuana breath test may evidence that a person had recently ingested weed in some manner, but it would not necessarily be evidence that the person “possessed” the marijuana. The distinction between a charge that prohibits consumption and one that only prohibits possession is important. The use of the weed breathalyzer probably would be limited to DUI investigations and probably would not help assist in pot possession cases, so the Penn State Police Department will not need to stock up on the devices.