Richard Middlebrook is one of the leading attorneys in the United States for cases involving driving under the influence of alcohol, prescription drugs, and illicit drugs. Mr. Middlebrook teaches other lawyers and scientists throughout the U.S. and is considered one of the best trial lawyers in the State of California with all the accolades and awards posted just to annoy those that have to look at his walls. And let me assure you, it’s annoying. Take a look yourself.
And though anybody could visit their local trophy shop and create a similar wall of greatness, Middlebrook has rightly earned it. He’s recognized by the National College of DUI Defense, DUI Defense Lawyers Association, American Chemical Society, American Academy of Forensic Sciences, California DUI Lawyers Association, and many other organizations for his contributions to an area of law that relies heavily on science and testing methods to prove a person’s guilt. With the majority of States passing some form of law legalizing use of marijuana, I thought it’d be good to get some answers about driving and marijuana use. (Disclaimer: I have not smoked a doobie in well over a year.)
ME: If my buddy Ryan is high his first words to me are, “Dude, I’m stoned,” and then he eats all my Cheetos. Other friends look like they’re lit but they were just born that way, never having done a drug in their life. How does an officer evaluate whether one is under the influence of THC or not?
MIDDLEBROOK: Generally, officers lack effective training that increases their ability to distinguish those individuals who are under the influence of THC and those who have used THC products. But that will not stop them from trying to assess if you are high.
ME: Are there field sobriety tests for marijuana or THC? Like with alcohol, you might be asked to walk a straight line or touch your nose with your eyes closed.
MIDDLEBROOK: Not really. The National Highway Transportation Safety Administration (NHTSA - pronounced NITS-uh) is trying to scientifically establish tests to be done in the field to correlate impaired THC driving to performance on the test. The problem they have is that THC affects individuals dramatically different, and finding a correlation between the field test and the results is nearly impossible.
Middlebrook refers me to a recent article by Beth Schwartzapfel, When Are You Too Stoned to Drive, The Marshall Project, January 16, 2017, writes as follows:
“We take for granted that not being able to walk a straight line or stand on one leg means that you’re drunk, and that being drunk means it’s unacceptably dangerous to drive. But there is no clear scientific consensus when it comes to smoking pot and driving. And few of the tools police officers have long relied on to determine whether a driver is too drunk to drive, like a breathalyzer, exist for marijuana.”
ME: What about a machine, like a breathalyzer, that can give quick results to an officer that believes you’re high?
MIDDLEBROOK: The most common portable drug testing device being employed is the Draeger 5000. It collects saliva samples and is able to report presence of a drug in under 4 minutes. The problem is presence of marijuana metabolites (including the residual and non-active ingredient in marijuana) test just as positive as active ones.
ME: So you’re saying if I smoked a joint yesterday, get pulled over today, and submit my saliva for evaluation by the Draeger 5000, I might still be arrested?
MIDDLEBROOK: Absolutely. You will likely be suspected for driving under the influence of THC as if you were smoking when you got pulled over. The tests can provide numerous false positives and has failed to prove scientifically reliable for any particular level of consumption or use of THC.
ME: And will I have an opportunity to submit a blood test? Is that the next step after I am arrested? And how reliable is that test and the procedure?
MIDDLEBROOK: After the swabs are taken and an arrest occurs, generally the suspect will be given the opportunity to provide a blood sample for specific analysis. Blood testing can be very accurate to the amount of drug in the blood and is able to distinguish active from inactive ingredients. Swabs may or may not be admissible in court since the issues regarding their scientific reliability or efficacy.
ME: Let’s say I’m driving to work this morning, get pulled over, and I happened to have consumed marijuana the night before. The officer suspects I’m under the influence. What would you recommend I do? Do you have some tips for those who regularly use marijuana legally?
MIDDLEBROOK RECOMMENDS THE FOLLOWING:
DO always obey the officer's instructions and provide identifying information.
DO request a blood sample be taken unless you are impaired. In that case, it may be in your interest to not have a blood sample taken.
DON’T participate in any type of agility tests. They are not required and nearly impossible to pass. Politely decline saying, “I don't believe the agility tests are capable of determining my lack impairment.”
DON’T answer any questions about your ingestion of any substance or details about your life, medications, consumption, vehicle issues, or medical conditions.
DO contact a lawyer with the background, training and experience to successfully put your best foot forward if arrested and prosecuted.
While finishing up my notes, Middlebrook and I are looking out of his office window that sits on the top floor of a glass building shaped like a triangle. The town below is Bakersfield, California, which has one of the highest DUI rates in the country. We talk casually about how busy he is, waking up at 2 or 3am regularly for early morning court appearances in Sacramento or Los Angeles, anywhere his client needs him to be. I was interested in hearing about a real case and so I asked. He shares a recent one:
“There is training an officer can go through that provides certification as a Drug Recognition Examiner. Actually, the name keeps changing to make it sound more legitimate. Drug Recognition Expert (DRE) is the latest term. An officer who arrested my client for driving under the influence of Vicodin was testifying. The blood test came back negative for any substance but they were still prosecuting. The officer had found an empty bottle of Vicodin in the center console of my client’s vehicle. The client told him he hadn’t taken Vicodin in 6 months but forgot to take the empty bottle out of the vehicle. Not believing him, the officer proceeded to do a DRE evaluation. Even when confronted with the NEGATIVE drug test, the officer was convinced that the DRE protocol was more sensitive than blood tests for drugs. That’s how much Kool-Aid they have to drink.”
With Middlebrook’s large stature, I picture him breaking down the walls of our criminal justice system that unfairly prosecutes those suspected of DUI/DWI offenses, yelling, “OOOOH YEAAAH!” This area of law seems like a very lucrative business at the Federal, State, and County level, being able to prosecute even when the science says otherwise. I know he’s busy so I attempt to excuse myself but he stops me for a minute. He has a question in case I get the munchies to dig deeper into this bag of potato chips.
MIDDLEBROOK: The real question that needs to be asked is, “Does the consumption of marijuana at any level significantly impair driving?” If so, science has yet to prove it.
To reach Mr. Middlebrook please visit: KernCountyDUI.com
Or come hang out with me, Jon Vaughn at Full-Time Daddy on Facebook. Thanks for reading.