DWI Marijuana: Prosecutor Wonders if He Convicted Innocent Man

This year, I have been collecting candidates for the "Worst Lawyer Soundbite of 2014" Award. We have a new nominee!

The ABA Journal online reports that some prosecutors, forensic scientists who work for the prosecution, and police officers question the science behind prosecutions for driving under the influence of marijuana. In my experience, judges also question the science of marijuana testing and marijuana impaired driving, making it more difficult for prosecutors to prove DWI marijuana beyond a reasonable doubt.

No Legal Limit of THC Concentration for DWI Marijuana

Many States, including New Hampshire, do not have a "legal limit" for THC bloodstream concentration, which means there is no objective standard for guilt or innocence. The two States that have legalized recreational marijuana use (Colorado and Washington), by contrast, have set 5ng/ml of active THC in the bloodstream as the legal limit for driving under the influence of marijuana prosecutions.

THC Concentrations in Blood Mislead

“The concentration of THC in the blood does not correlate to the effects,” Robert Jones, an Oregon State Police forensics lab supervisor, told an Oregon newspaper, according to the ABA Online article. Thus, the standard argument that prosecutors use in DWI alcohol cases -- a high BAC means a highly impaired person -- simply does not hold water in a DWI marijuana case. This also means, of course, that the 5ng/ml legal limit for THC blood concentrations in some States is wholly arbitrary.

Bemused Prosecutor Reflects Upon Convicting Innocent Defendant

The ABA Journal online tells the story of a prosecution gone off the rails. The Ciatsop County, Washington District Attorney's Office prosecuted 19-year old Samuel Martin Kitto for a car crash that injured the driver and passenger of the vehicle he struck. Kitto had fallen asleep behind the wheel, after an all-night party at which he had smoked marijuana.

After the jury convicted Kitto of driving under the influence of marijuana, Kittos' own prosecutor seemed far from convinced that justice had been done.

The prosecutor said: “In fairness, I can’t say this guy was entirely under the influence of marijuana,” Josh Marquis, the Clatsop County district attorney, told the newspaper. “I think the jury wasn’t all that sure, either.”

So we have a prosecutor bemusedly reflecting that he "can't say" that the defendant was under the influence of marijuana -- after a trial in which his office successfully argued to the jury that the defendant was under the influence of marijuana. This one may transcend the 2014 Worst Lawyer Soundbite competition and go straight to the all-time Hall of Shame!