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Can Marijuana Smell Alone Can Lead To A DUI?

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Can Marijuana Smell Alone Can Lead To A DUI?

Can marijuana smell alone lead to a DUI?  In our opinion, yes it can, and here is why:

We have written extensively on the 2019 changes in the law that made Cannabidiol (CBD) legal in Florida and resulting confusion as to whether or not law enforcement could utilize the smell of marijuana alone as a legal basis to conduct a search or conduct a criminal investigation.  See Marijuana Enforcement in Florida - A Haze of Confusion and Marijuana Smell Alone Is Back! Marijuana Enforcement In Florida - A Haze Of Confusion - Part 2

The Second District Court of Appeals (which is the controlling Appeals Court for the Tampa Bay region) has ruled that, “an officer smelling the odor of marijuana has probable cause to believe that the odor indicates the illegal use of marijuana” and thus law enforcement has probable cause for a warrantless search - including probable cause for a warrantless search of a vehicle.

While the “smell alone” ruling poses significant issues for citizens, there are even more consequences to the “smell alone” doctrine when it comes to Driving Under the Influence (DUI).

When a law enforcement officer makes a civil traffic stop they are always looking for any indications that the driver is impaired.  The standard for an officer to switch the investigation from a civil traffic stop to a criminal investigation for DUI is “reasonable suspicion.”  Reasonable suspicion is defined as  the standard where a reasonable and objective person would suspect an individual of committing or intending to commit a crime.  Once a law enforcement officer has reasonable suspicion that the driver may have his or her normal faculties impaired while operating a motor vehicle they can launch into a full criminal DUI investigation including Field Sobriety Tests.

Officers often will cite that the driver had bloodshot, watery eyes; an odor of alcohol on his or her breath; was slurring their speech, or was unsteady on their feet as a reasonable suspicion basis to conduct a criminal DUI investigation.  With the “smell alone” doctrine alive and well in the Tampa Bay Area via the Second District Court of Appeals ruling, we can now add the odor of marijuana as yet another basis for law enforcement to conduct a criminal DUI investigation.

Additionally, the plain smell of marijuana further opens the door to allow law enforcement to conduct a warrantless search of the vehicle which may lead to additional criminal charges if the driver were for example to be in possession of marijuana or any other controlled substance or have any other illegal item in the vehicle.

Thus, the smell alone of marijuana, with other factors, could lead to a criminal DUI investigation when a person is pulled over and could be used as a basis to establish that the person was operating the vehicle with their normal faculties impaired.

If you have been arrested for Driving Under the Influence (DUI), Possession of Marijuana, or any other criminal offense in the Tampa Bay area including St. Petersburg, Tampa, Clearwater, or Largo call the Morris Law Firm for a strategy session on your case.  Call 727-388-4736, Option #1 for New Clients.

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