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Update on Implied Consent Laws


Last week, on November 11, 2014, I wrote a blog on implied consent in a few states—including Ohio. However, the other day, a Channel 7 news commercial (out of Detroit) came on the TV and started talking about a "new breathalyzer device that detects marijuana—much like alcohol." Cue the record stopping or screeching sound! A big light bulb went off in my head and I wondered—"what happens when Ohio gets something like this," and "using these new tools could change Missouri v. McNeely!"

Missouri v. McNeely

As I stated in the blog on November 11, 2014— generally, when the officer needs to search something—a person, place, or thing—the Fourth Amendment instructs us that the officer can get a search warrant and then conduct the search. However, when the officer feels as if the evidence will be destroyed or deteriorated by the time a warrant is received, they can conduct the search immediately under the "exigent circumstances" exception. However, per Missouri v. McNeely (2013), the U.S. Supreme Court reasoned that, to gather blood without a warrant, the officer would need to show that he or she would not have been able to quickly secure a search warrant. Before this case was decided, law enforcement believed that the same "alcohol deterioration of the blood" argument would suffice for the "marijuana deterioration of the blood" argument. Thus, officers could use exigent circumstances to get a blood draw for a suspected marijuana OVI offender. McNeely changed this belief. Since marijuana stays in the system much longer than alcohol, without other indicators (probable cause indicators), the police officer would have to procure a search warrant for the person's blood test, or send the person on his or her way.

Cannabix Technologies

From the case above, we know that law enforcement would need to get a warrant to conduct a marijuana test on a driver. However, a company in Canada, which is quickly gaining traction from employers, educators, and law enforcement agencies, has developed a breathalyzer that detects marijuana in one's system. This new device measures the Tetrahydrocannabinol (THC) on a person's breath, and the device measures the THC from the past 72 hours. Check out the main video at for more detail on the device. Bottom line—if you smoked weed in the last three days, and you are driving, the test will show a positive indicator for driving while THC courses through your veins.

What does this all mean?

After watching the video, this new device seems pretty cool; however, the implications of this device on the Fourth Amendment are somewhat chilling. At this point in time, in states that do not have an implied consent statute, the McNeely case is binding for driving under the influence of marijuana testing—law enforcement has to get a warrant less exigent circumstances. But, with the implementation of this new device, law enforcement would not need any exigent circumstances—just breathe away for this test.

There are two sides to this device: this will help law enforcement with all of the states legalizing marijuana usage—which is good. We want our police to crack down on impaired driving. Alternatively, we have to watch giving our law enforcement more power that bends our constitutional rights—more specifically, our Fourth Amendment rights. Once again, we are at the dreaded question—which is more important, our Fourth Amendment rights, or keeping our streets sober and clear? This is a very tough balancing question. What do you think?