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No.

A Person Asks: I Use Marijuana On A Regular Basis, But Not While Driving. Will I Still Be Prosecuted For A Marijuana DUI In CT?

If stopped and you test positive that is all that is needed. However, since there is no quantitative amount with regard to limits as in the alcohol part of the law then to prove you are guilty the State must proceed in the old common law tradition: smell, your actions, was marijuana found in car, did you admit to taking the drug, if given a urine test was it positive for THC. The police may have had a Drug Recognition Expert evaluate you while in custody. He will do a police sponsored examination and write a report. The prosecutor will review the Arrest Report for erratic driving, see if the defendant was involved in an accident, along with reviewing the results of the Standard Field Sobriety Tests (SFST).

What Does The Assistant State’s Attorney Have To Show To Prove A Marijuana DUI In CT?

That you were operating under the influence of the drug.

Will My Driver’s License Be Suspended For A Marijuana DUI?

Yes.

What Are Potential Defenses To A Marijuana DUI?

If you were not operating the vehicle then that is a defense and if you were not under the influence that is another defense. There are various matters that address each.

Operation is defined as a person when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency, which alone or in sequence will set in motion the motive power of the vehicle. State v. Swift, 125 Conn. 399, 401-403 (1939). This includes where the defendant was unconscious or sleeping in his parked, running vehicle with his arm wrapped around the steering wheel and his fingers curled around the gear shift.

Cases involving operation are decided on a case by case basis. If a person is parked in his car the court wants to know how long it had been in the place where it was found. In addition, was the defendant behind the wheel of the car, was the key in the ignition or was the engine running. The Judge in State vs. Haight mentions that the definition of operation does not include motion nor does the engine have to be running. If the key is in the ignition that is enough to be considered operation—the position of the key is irrelevant. These facts fit into the 1939 Connecticut Supreme Court Decision. However, in the DeCoster case, the key was in the ignition but the Court reversed the conviction because “no one had seen DeCoster operating the car, and there was no evidence to show how long it had been standing in the place where it was found…” The same facts today would probably result in a different decision. There was the Cyr case in which the man walked to his car and started it electronically before getting inside it—he used a remote starter. To move the car, he would have had to insert the key into the ignition to continue the process of moving the car. The Court determined that having to do that is of no greater import in determining whether there has been ‘Operation” than the fact that a person without a remote starter, after inserting the ignition key, will need to turn that key to start the motor. Either inserting a key to start an engine or using a remote starter is taking the first step toward engaging the motive power of the vehicle. In addition to the aforesaid, the courts have indicated that you cannot be operating a motor vehicle if there is no engine in the vehicle or if the vehicle is completely disabled—wholly incapable of movement—and someone behind the wheel is of no danger to himself or others.

The issue of under the influence can also be complicated. For instance, “elevated blood alcohol content” means:

A ratio of alcohol in the blood of such person that is 0.08% or more of alcohol by weight; if operating a commercial motor vehicle the ration of alcohol in the blood of such person is 0.04% or more; and, if a minor, the ratio is 0.02% or more.

Then you can challenge the breath, blood, or urine test. If there was an error in the testing, then that can assist you in your defense. Most tests are volume results, which need to be converted to weight results as is mentioned in the statute. Then there is the challenge to the breath testing machine: if it was not being operated properly, the person giving the test was not qualified or if the laboratory testing the urine or blood did not test either properly and the results did not meet the scientific certainty definitions. When dealing with the urine or blood there are other chemical and biological factors that can cause incorrect results. One item that is challenged is that in a urine test the urine in the bladder where alcohol is concerned can be mixed with urine that has concentrations of alcohol in it or no concentrations of alcohol in it depending upon when you drank the alcoholic beverage. So, the test might not accurately state the true alcohol concentration. While if drugs are concerned the test results will only show the presence of the drug and not the concentration—amount– nor will the test be able to determine when the drugs were ingested. For marijuana, at least, it could have been 30 days ago. So, when this occurs the issue of being under the influence is at stake. You can make similar arguments with blood testing and results. With blood and urine test there are chains of custody issues. Who took the samples what happened to the samples once taken and the route to the testing lab along with how long it took to get tested. Some of these issues can be as simple as the police not being able to show the chain of custody to their being scientific reasons why the results are inaccurate.

Some Case Law to Assist You.

Testimony of drug recognition expert that combined effect of low level of marijuana and low level of alcohol could equal anywhere between 0.09 and 0.16 blood alcohol content, as if based on alcohol alone, was not plain error, in trial for operating motor vehicle while under influence of intoxicating liquor or drug, or both, under statute that prohibited State from offering evidence of defendant’s blood alcohol content at time of offense in DUI cases based on behavior; defendant, and not State, introduced evidence that his blood alcohol content at time of arrest was 0.0352, and thus, defendant opened door to questioning about results, and in any case, expert did not testify to defendant’s blood alcohol content at time of offense, but instead discussed in general terms effect that low levels of marijuana and alcohol have on individual, and how that would compare to blood alcohol content that measured effects of alcohol alone. Conn. Gen. Stat. Ann. § 14-227a(c).

State v. Wynne

Appellate Court of Connecticut. June 19, 2018 182 Conn.App. 706 190 A.3d 955 39169

CRIMINAL JUSTICE — Driving While Intoxicated. Evidence was sufficient to support conviction for operating motor vehicle while under influence of intoxicating liquor or drug, or both.

…Testimony of drug recognition expert that combined effect of low level of marijuana and low level of alcohol could equal anywhere between 0.09 and 0.16 blood alcohol content, as if based on alcohol alone, was not plain error, in trial for operating motor vehicle while under influence of intoxicating liquor or drug, or both, under statute that prohibited State from offering evidence of defendant’s blood alcohol content at time of offense in DUI cases based on behavior; defendant, and not State, introduced evidence that his blood alcohol content at time of arrest was 0.0352, and thus, defendant opened door to questioning about results, and in any case

…Evidence was sufficient to support finding that defendant’s consumption of marijuana and alcohol impacted his mental, physical or nervous processes to degree he lacked ability to operate his vehicle safely, as required to support conviction for operating motor vehicle while under influence of intoxicating liquor or drug, or both; officer testified that he observed defendant having difficulty…

…Nevertheless, he testified that an individual with a low blood alcohol content who also had marijuana in his system would display more clues during the one leg stand test and the walk and turn test than would an individual who had only a low blood alcohol content….

…Furthermore, Ehret did not testify to the defendant’s blood alcohol content at the time of the incident, but rather he discussed in general terms the effect that low levels of marijuana and alcohol have on an individual, and how that would compare to a blood alcohol content that measures the effects of alcohol alone….

STEVEN TOMEO, ESQ.

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