Marijuana Breathalyzers on the Horizon?

It is common knowledge by almost everyone that one resource that police officers have at their disposal in virtually every DWI stop is the breathalyzer. As an attorney who has handled and tried DWI cases for years, questions about breathalyzers far outnumber all other questions I receive.

Questions such as: Should I agree to a breathalyzer? (The answer is no. See my previous blog from September 8, 2015, No Refusal Weekend? Refuse Anyway!.) How accurate is a breathalyzer in detecting alcohol content? (Often, not very. See my partner Robert’s blog from November 19, 2015, Shocking News: Breath Test Machines Are Not Always Accurate.)

However, I anticipate a whole slew of new questions soon. In a US News & World Report article from earlier this week, a California company is promising a Marijuana Breathalyzer that they claim will be ready for rollout as soon as next year. Just as it sounds, the company claims that the so-called marijuana breathalyzer can detect THC (tetrahydrocannabinol) on the driver’s breath.

Unfortunately, the article is scant on actual details and scientific specifics. Rather, it appears to simply present conclusory statements from the ER doctor/reserve police officer that is the CEO of the company.

Going forward, essential questions will have to be addressed clarifying the actual scientific basis of the devise. Clarification of what it is actually claiming to be able to do, how it claims to do such things, and what degree of accuracy it is even portending to be able to reach.

Unfortunately, the legal field, including the areas of DWI and criminal law, has a history of “junk” science making its way into prosecutions and law enforcement. All too often, technological and forensic advances have been touted as reliable law enforcement tools necessary for prosecution only to have it discovered many years later, and many wrongful convictions later, that the science and forensics basis was not what is was originally thought to be.

The legitimate merits and criticisms of this so-called Marijuana Breathalyzer remain to be seen. However, one thing is clear: the company from the article, and other similar companies, stand to make quite a lot of money if they can successfully convince the industry that their product is the real deal.