This post will be the first of many posts concerning Driving While Stoned because there are so many issues related to the topic. First, I want to thank my law school friend and colleague, G. Troy Pickett, for posting this article on Facebook so that I could share it with all of you. One of the main reasons I find this to be a good topic for discussion is that I just became certified to perform the Standardized Field Sobriety Tests (SFSTs) just like any other law enforcement officer. However, the SFSTs are not valid and reliable when it comes to detecting intoxication caused by marijuana. The offense charged will be Driving While Intoxicated and the statute includes the loss of normal mental and/or physical faculties due to the introduction of a drug such as marijuana. Law enforcement trained to detect whether a person is under the influence of a drug and therefore intoxicated are referred to as a Drug Recognition Expert (DRE). The DRE is supposed to follow a 12 step process where the last step is a chemical test, thus in effect nullifying the use for an “expert” to give his guess as to whether a person is intoxicated. The thing to remember is to always refuse to provide blood if you have any illegal substance or alcohol in your blood. If you are performing the tests for a DRE then you are going to jail, so do not provide the State with anymore evidence to prosecute you. Even if the arresting officer gets a warrant and takes your blood the State will have to produce a toxicologist to testify as to the nanogram levels in your blood. The State may have some difficulties based on their inability to prove whether it is a metabolite lingering in your system that does not affect a persons mental or physical abilities. There are a few good cases for the defense as to the burden on the State to produce valid and reliable evidence in cases where it is alleged that the defendant is intoxicated due to drugs (See DeLarue v. State and Layton v. State).

Another reason I shared this article was that I heard through the legal grapevine that Texas was receiving some Federal grant money to help educate and train more law enforcement to become DRE certified. After learning this I signed up to take the next class offered in my are to become DRE certified…