can driver be arrested if car smells of pot, but no marijuana in the car?

Discussion in 'Legal Issues' started by Midnighttoker, Mar 29, 2009.

  1. Midnighttoker Midnighttoker

    • Active Member
    • Since: Mar 18, 2009
    • Posts: 694
    Hi,
    I live in Florida and was wondering if you get pulled over and the car smells like pot and the driver has bloodshot eyes, but there is no pot or paraphernalia in the car, can he be arrested?

    or can you be arrested for being high?

    thanks
  2. Code347 Code347

    • New Member
    • Since: Mar 24, 2009
    • Posts: 94
    Yes. It is called driving under the influence. All of the factors play into the observable things that create probable cause for the officer to make an arrest.
    Smell give the officer a reasonable articulable suspicion to make the stop. The observation of the driver, bloodshot eyes, gait, nystagmus...all play into the overall picture that would allow that officer to make an arrest and get a blood draw.

    My advice - as with alcohol or prescriptions drugs....do not drive under the influence, or get into the car with someone who is.
    7 people like this.
  3. Midnighttoker Midnighttoker

    • Active Member
    • Since: Mar 18, 2009
    • Posts: 694
    good advice.

    If you get arrested for driving high is it like the same thing as a dui? in this case you're under the influence but not of alcohol.

    and can they tell if you're high from a blood sample?
  4. Buzzby Buzzby

    • Buddhist Curmudgeon
    • Since: Aug 27, 2004
    • Posts: 40,845
    It depends on which state you live in. Some states have separate statutes for DUI (alcohol) and DUID (drugs). Driving while impaired is illegal under the laws of every state.

    No.
  5. Vesey Vesey

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    • Since: Nov 8, 2008
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    Come to think of it, is there any way to tell if someone is high aside form a confession?
  6. Plainsman1963 Plainsman1963

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    • Since: Jul 19, 2002
    • Posts: 12,031
    Good Ques Vesey: Any typical episode of "COPS" would lead you to believe that the po-po are well-trained to determine if you are high and also which particular drug you are high off of (e.g., alcohol, pcp, amphetamines, MJ, etc..). They purport to use clues such as slurred speech, mild delirium, dilated pupils, and lack of coherent speech patterns. But I would almost wager a Sprite with anyone that an experience MJ user can out-wit the cop by keeping their cool and taking simple measures such as using Visine, cologne, and putting they stash in the trunk or not riding dirty when confronted by the po po. I would think that disguising the high from speed, crack, alcohol, or drugs other than pot would be much harder to pull off in front of a fuzz-man.
    3 people like this.
  7. Buzzby Buzzby

    • Buddhist Curmudgeon
    • Since: Aug 27, 2004
    • Posts: 40,845
    They train LEOs to see the signs, but that isn't hard proof. A field sobriety test or some other kind of impairment test would be appropriate. If you're too stoned to pass the test, you're certainly too stoned to be behind the wheel.
    3 people like this.
  8. troublemaker420 troublemaker420

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    • Since: Mar 2, 2004
    • Posts: 27,806
    Some officers ecieve training and are certified as "DRE's" or drug recognition experts. They have recieved specialized training to alert them to drug abuse and the signs associated with it, ansd are certified to determine iof a person is under the influence and what drugs they are under the influence of. Along with sobriety tests, these determine whether an arrest is made or not. Once in custody, you may be asked for a urine sample or blood test. Depending on the state, and sometimes how many offenses you've had, you can either refuse, or not. In some states, blood/urine will be acquired forecibly (or a warrant is acquired requiring a sample be given) if consent is refused. A positive blood or urine test, along with the officer's statement you were impaired, is often all thats needed to gain a conviciton.
    1 people like this.
  9. Sinic Sinic

    • New Member
    • Since: Mar 31, 2009
    • Posts: 66
    As far as i know its called DUI.
    Dui like someone up there said, it means Drive under influence, DUI can reffer to drugs,marijuana,alcohol, etc.
    My personal thought on your question, cops aren't have any permissions to arrest you or things, but if your car smells like pot, and they are catching you, i think you'll have to do some tests.
  10. Privaron Privaron

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    • Since: Apr 22, 2008
    • Posts: 658
    Any idea what our states specific laws are regarding this stuff Buzzby?

    I am extremely careful about ever driving under the influence of alcohol but considering I'm a daily smoker it's quite a task to live a functional lifestyle drive etc all the time totally clean in fact I try because I'm paranoid but needless to say it's impossible.

    Also any idea what exactly the field sobriety test entails and under what conditions they are allowed to get a urine or blood sample here?

    The more details the better Ill throw up 600 grams if you can get me a detailed account of our state law and what I can expect when driving under the influence of marijuana but not having it on me. Granted theres the basics but I'm looking for more state specific information.
  11. Code347 Code347

    • New Member
    • Since: Mar 24, 2009
    • Posts: 94
    Some officers are trained in DRE...Drug Recognition and Evaluation. It is a series of observations and field sobriety tests to make a best guess of what a particular person is under the influence of. Now if you are stopped as a driver of a vehicle, and an officer does his hoodoo-voodoo (Nystagmus, pupil size, Sway) and makes a determination that you are indeed impaired, off to the jail house you go. Now quite a few states have an illegal per-se law on the books. There are elements in there that allow for an officer to suspend your license temporarily until you get a DMV hearing where they will confirm the officers findings. What it also does is require you take a blood/breath/or urine test (DUID). Usually your choice....

    Refusal to take the tests offered by an officer under illegal per-se can result in a year long suspension in some states. This does not mean you escape prosecution for DUI either...they just go with the observation evidence of the officer. If there is a felony attached to the charge...vehicular manslaughter, gross bodily injury... they will get a search warrant and take blood...and that has a series of interesting arguments all its own.

    I forgot to add... arrest for driving under the influence will have you facing two agencies.... DMV and the Court System....
  12. JohnnyMT JohnnyMT

    • New Member
    • Since: Mar 5, 2009
    • Posts: 72
    What if the car smells of pot, but the person driving doesn't appear intoxicated? Like if the smoke session was the day before, for example.

    They could search your vehicle. But if the search came up clean, there is nothing they could do, correct?
  13. Frenchie Frenchie

    • New Member
    • Since: Mar 30, 2009
    • Posts: 108
    possessing an odor is not a crime and therefore you cannot be arreested for it. but it is reasonable suspicion based on the officers experience and under the terry vs ohio "terry stop" the officer may believe a crime has been committed - possession of mj - and may detain you long enough to clear up the ambigous circumstance. the detention time allowed is not in stone but 30 minutes is acceptable. if he has you behind the wheel, he has an obligation to the community to insure you are not intoxicated however he cannot compel you to do field sobiriety test unless he observed impaired driving. so, he will be fishing for answers to build more reasonable suspicion and for probable cause to arrest you. he will ask you questions, your responses are very important. he will use all your responses as evidence against you. every movement you make will be scrutenized against how he "thinks" a sober person would act.
    if your high, been driving, not currently in possession of mj or paraphernalia and the cop smells mj on you or in your car. the cop has the option to arrest or not arrest based on his fishing expadition.
    the report he writes will have to be very tight to get a conviction. he will have to articulate everything he saw and every thing you say to demonstrate beyond a reasonable doubt that your driving is impaired to prove dui. most cops are too lazy to go thru that effort and many are not experienced enough to articulate in a report or in court the info necessary for a conviction. my advice? play the odds, say the very minimum, refuse any sobriety test, answer with yes and no or i dont know. let him do the work to get the conviction. a good attorney will minimize the damage or get you off completely. the bigger the jurisdiction the likelier you will get off. small towns tend to run kangaroo courts. that being said, in 18 years of police work and hundreds of dui arrests, i NEVER worked that hard for a mj dui but i did find other violations to cite on. early in my career, one who refused to talk incited me to look harder, later in my career, one who invoked his right to remain silent had my respect but also was arrested as soon as PC was developed.
    1 people like this.
  14. flannel flannel

    • New Member
    • Since: Feb 17, 2009
    • Posts: 112
    hmm idk, its good question my guess is that you will be arrest but not charged. Unlike alchohol ( breathalizer )there is no test for recent consumption of thc. All they could do is maybe a get a warrant for a blood test, and then prove that you have ben high in the last 6 weeks. This is useless though, because being high alone isnt a crime, only possession is. Thus they would have a long talk, and you would be put in a cop car and brought to jail, but it would be entirely equited. by the way in florida if you're under 18 and dont instantly concent to a test and are found guilt of commiting a crime the punishment is x2
    2 people like this.
  15. Code347 Code347

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    • Since: Mar 24, 2009
    • Posts: 94
    As Frenchie said - Odor gives the officer reasonable suspicion to detain, and get into the vehicle and possibly find other violations of the law. As far as Flannel's statement that being under the influence is not a crime...In most of the states I have worked in there were charges on the books for UICS (Under the influence of Controlled Substance). While it is not something an officer may primarily arrest on, it may play a part of their probable cause to detain, question, and arrest. The way the laws are crafted for DUID always have an observation element in them.
    1 people like this.
  16. BudSmoker92 BudSmoker92

    • Sr. Member
    • Since: Nov 26, 2008
    • Posts: 1,531
    Im under 18 and live in Florida, this is probaly one of the most useful things ive read here. Thanks!
  17. stevebeast stevebeast

    • New Member
    • Since: Mar 15, 2009
    • Posts: 162
    KEEP YOUR MOUTH SHUT. if there isnt anything in the car then you will be ok as long as you dont say anything. If the cop can smell weed he can search your car but if he doesnt find anything there is no evidence, he can say you were driving while impaired but he cant proove. The only way he can get a case is to get you to admitt something or say something he can proove is a lie, so dont say anything. Remember the police are not held to the high moral and ethical standards of a bill collector or a used car salesman they will say anything if they think it will make you talk.
    1 people like this.
  18. jdogg2112 jdogg2112

    • Sr. Member
    • Since: Feb 23, 2009
    • Posts: 1,238
    Really a superb video (including part 2 found on youtube). Many thanks.
  19. Frenchie Frenchie

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    • Since: Mar 30, 2009
    • Posts: 108
    Don't say anything is very good advice. My police survival classes taught that after we were involved in a shooting, even a righteous one, when the investigators started asking us questions that we were to remember ... the police are not are friend. A truthful but incorrect answer can land you in jail and unemployed.

    Valid YouTube URL required


    <a href="http://vids.myspace.com/index.cfm?fuseaction=vids.individual&videoid=43833">police</a><br/><object width="425px" height="360px" ><param name="allowFullScreen" value="true"/><param name="movie" value="http://mediaservices.myspace.com/services/media/embed.aspx/m=43833,t=1,mt=video"/><embed src="http://mediaservices.myspace.com/services/media/embed.aspx/m=43833,t=1,mt=video" width="425" height="360" allowFullScreen="true" type="application/x-shockwave-flash"></embed></object>
  20. Bliff Bliff

    • Guest
    • Since:
    • Posts: 0
    i live in florida and have been pulled over multiple times high with blood shot eyes and my car reeking of weed....all they do is ask me to step out of the car ask me if i smoked and i say no then they search me and my car cant find anything and let me on my way......i guess iv just been really lucky?

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