Defending Marijuana DUI’s in Nebraska


Law enforcement and prosecutors in Nebraska are dedicating more time and resources than ever to arresting and prosecuting drivers suspected of driving under the influence of marijuana. Drivers charged with driving under the influence of marijuana face the same penalties as those charged with driving under the influence of alcohol, including mandatory jail time and loss of driver’s license.

Defending a person charged with driving under the influence of marijuana is vastly different than defending a person charged with driving under the influence of alcohol. It takes a skilled attorney with experience in marijuana DUI cases to understand the unique physiological and toxicological issues unique to marijuana.

Standard Field Sobriety Tests

To graduate from the academy and become certified law enforcement officers, individuals are required to take and pass a course focusing on detecting drivers impaired by alcohol. This training includes how to perform and administer field sobriety tests, how to properly administer preliminary breath tests, and how to administer formal breath tests on the Datamaster machine.

Standard Field Sobriety Testing (SFST’s) have been scientifically tested and proven to accurately detect impairment due to alcohol when administered properly. However, the ability of SFST’s to determine impairment induced by other drugs is relatively unknown. Specifically, peer-reviewed studies seeking to validate SFT performances as consistent and accurate predictors of marijuana induced performance have failed to do so.

A 2005 study showed that trained police officers had a false alarm rate of 57% when requiring individuals under the influence of marijuana or other drugs to perform SFST’s. Only 31% of the time officers were able to correctly identify marijuana impaired subjects.

An Australian study found that the number of false positives could be quite high if SFST’s alone were used to determine whether an individual is driving under the influence of drugs.

A 2012 study showed investigators were largely unable to detect impairment due to marijuana until it was co-administered with alcohol, highlighting the limited ability of SFST’s to identify impairment caused by the consumption of drugs.

The Massachusetts Supreme Court has held that “[T]here is a lack of scientific consensus as to the validity of field sobriety evaluations for determining whether a subject is under the influence of cannabis…We are not persuaded…that the SFST’s can be treated as scientific tests establishing impairment as a result of marijuana consumption.”

The Drug Recognition Expert (DRE) Report

Acknowledging that many officers lack the ability to detect impairment caused by marijuana and/or other drugs, law enforcement agencies created the Drug Recognition Expert (DRE) program.

The DRE program was designed by law enforcement to provide additional training to detect impaired drivers under the influence of drugs other than alcohol. However, the DRE program is not without its shortcomings.

The biggest issue with the DRE program is that it is not based upon scientifically validated principles. “The DRE Protocol fails to produce an accurate and reliable determination of whether a suspect is impaired by drugs, and by what specific drug he is impaired.” Maryland v. Consolidated Cases, 2012.

A 2013 study concluded that “The accuracies reported by these studies do not quantify the accuracy of the drug influence evaluation process now used by US law enforcement. These studies do not validate drug influence current drug influence evaluation practice.”

At trial, a DRE will testify to multiple physiological signs and symptoms such as body tremors, eyelid tremors, discoloration of the tongue (“green tongue”), and rebound dilation as evidence of impairment caused by marijuana. Simply put, these observations are not backed by scientific research and can mislead jurors.

The Toxicology Report

In Nebraska, drivers suspected of being under the influence of marijuana are required to submit to a urine or blood test. Neither test is capable of proving whether an individual is currently under the influence of marijuana.

THC may be detectable in urine for periods of time exceeding 100 days following the last use of marijuana. THC may be detectable in blood up to seven days following the last use of marijuana.

The National Highway Traffic Safety Administration itself has stated that the period of acute influence of inhaled cannabis on psychomotor performance is 10-30 minutes, and that these effects tend to dissipate quickly after one hour.

“There is no one blood or oral fluid concentration that can differentiate impaired and not impaired. It’s not like we need to say, ‘Oh, let’s do some more research and give you an answer.’ We already know. We’ve done the research.” Dr. Marilyn Huestis, former Chief of Chemistry and Drug Metabolism at the US National Institute on Drug Abuse.

Marijuana DUI Attorneys

At a trial for driving under the influence of marijuana, the government will rely on unproven and unscientific methods to get a conviction. A skilled marijuana DUI attorney levels the playing field and ensures that your constitutional rights will be protected. If you have been charged with driving under the influence of marijuana, it is crucial that you contact an attorney right away, as this charge carries life-altering consequences. Call 402-817-6469 today to schedule a confidential consultation.

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