A ridiculous amount of misdemeanor marijuana possession cases in Wake County are the result of a traffic stop for speeding or expired registration and end up in a citation for weed possession and marijuana paraphernalia possession.
Last year the State Bureau of Investigation released a memo stating a human nor a dog can detect between the smell of illegal marijuana and legal hemp. In theory, this should have stopped most officers from searching vehicles based on what they perceive to be the smell of marijuana. However, officers are still proceeding with these searches against guidelines. It’s not illegal for cops to do so right now, but it does allow for a good argument in court.
North Carolina does not test drugs in misdemeanor cases, nor does NC possess a roadside test that can indicate the exact level of THC in what might look like marijuana. However, you can still get a DWI for smoking pot while driving.
Pursuant to NCGS 20-138.1, a person commits the offense of impaired driving if they drive a vehicle while under the influence of any impairing substance. Marijuana is an impairing substance. The courts have grappled with just how much marijuana is enough to impair a person, and no answer has ever been reached. Therefore, if you have any THC in your system, you could be charged and convicted of a DUI.
The officer will likely ask the driver to do standard roadside field sobriety tests such as a walk and turn, one-leg stand and horizontal gaze nystagmus. Additionally, the officer may ask the driver to blow into a portable breath test. If this test shows no presence of alcohol, but the officer still believes the driver is impaired, the officer will arrest the driver and take him to the Wake County Detention Center for a blood test. If this blood tests comes back with the presence of THC (or other impairing drugs, legal or not), the driver might be convicted of driving while impaired.
These blood tests do not give results immediately — they take weeks to many months, depending on how backed up the lab is.
So why don’t more cops do field sobriety tests when a car smells like weed? Who knows. If you do get stopped, remember:
- Do NOT consent to the officer searching your car;
- Do NOT admit to possessing or ingesting illegal drugs;
- Be polite and cooperative;
- Record the interaction on your phone, even if it’s just a voice recording;
- You can refuse to do the roadside tests, although this may be used against you in court; and
- You can refuse the portable breath test, but if you refuse the breathalyzer (at the jail or in the trailer if it’s a checkpoint), you will lose your license for a year regardless of whether you are impaired or not.
If you are arrested for a DWI in Raleigh or cited for drug possession in Wake County, contact William Pruden at 919-880-2124.
