Is a green tongue enough for a DUI arrest?

Now that Washington State and Colorado have legalized Marijuana presumptively there is going to be more DUI arrests in those States for Green DUI's (those under the influence of Marijuana).  One of the observations that law enforcement often relies on in addition to the usual signs of impairment when it comes to Marijuana is a green tongue.  So the question becomes is a green tongue enough to get arrested for DUI?  

First it must be determined whether Marijuana actually causes a tongue to turn green.  

As I have noted before in my blog, I don't take part in Washington State's newest over 21 adult activity. So I asked several people I know who do, as well as some experts in the area of Marijuana impairment. They all had the same answer to whether Marijuana causes a green tongue.  Absolutely not?

So how did law enforcement come up with this green tongue phenomena.  I guess it was first started by the National Highway Safety Administration.  You know the same agency that created those wonderful roadside gymnastics tests that law enforcement and Prosecutors swear up and down detect impairment. They warn of the following characteristics for a Marijuana DUI under DEC profile, 

"characteristic indicators may include odor of marijuana in car or own subject's breath, marijuana debris in mouth, green coating on tongue, bloodshot eyes, body and eyelid tremors, relaxed inhibitions, incomplete thought process, and poor performance on the field sobriety tests."    NHTSA, "Drugs and Human Performance Fact Sheets

Yet NHTSA offers no documented medical evidence to support their position.  If you have ever tried a Marijuana DUI case then you know both the Tox and Cop say the taste buds get raised on the tongue, and the burnt Marijuana as well as the debris causes it to turn the tongue green.  I guess if you have a green slurpee, or a green jolly rancher, or a green lollipop you will get arrested for a Green DUI under the line of thinking.    

So clearly NHTSA has it correct (Im being facetious), and thus this so called green tongue phenomena has started.  So that brings me to the second question I posted.  

If you have a green tongue does that give an Officer probable cause to arrest for a Green DUI here in Washington State?  

Remember probable is the reasonable suspicion that would warrant a reasonable officer a crime has been committed.  Since probable cause and Marijuana really hasn't been discussed by the Washington State Supreme Court there really only two cases that discuss this idea and one is an unpublished opinion.

In State v. Wheeler, the Court of Appeals dismissed the idea that a green tongue and admission to past marijuana use by a driver gave rise to a reasonable suspicion of criminal activity.  In fact here is what they said.  

"Although we assume the officer's assertion to be true for purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue. The only case we could find that remotely supports such a proposition is State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000), wherein the opinion's fact section mentions that the defendant, who had admitted to recent marijuana usage, also had a green tongue. Beyond this observation, however, the court never analyzes whether the green tongue and the recent marijuana usage are linked. And the officer who made the observation does not assert a connection between the two."  

So basically the only ruling is unpublished but if you read between the lines the Court of Appeals has issues with the accuracy of what the Trooper said.  I think they are saying its BS, but that is just my opinion.  

So why am I bring this up.  Well has you know I'm a Seattle DUI lawyer.  I represent people not only accused of DUI involving alcohol, but also Marijuana.  And with the recently legalization of Marijuana this issue will soon get decided.  In fact I read online there was a recent case in the City of Kent where an individual was arrested for having a green tongue, and there was no other indicators of impairment.  You can check it out here.  It is titled, "Wash State Man Arrested for Having "green tongue."

Long story short.  This guy got arrested for a Green DUI in Kent.  Officer said he had green tongue, and in his infinite years of experience, and despite his lack of any sort of medical corroboration this is a sign of Marijuana use and he was arrested.  Should be interesting to see what happens in this case.  

If you have been arrested for a Green DUI and the only evidence against you is a '"green tongue," you need to fight these charges.  This is absolute BS, and is an infringement on our 4th amendment rights.  

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Matthew A. Leyba is a DUI Attorney in Seattle, WA.  He has been named a 2013 Rising Star by Super Lawyers Magazine in the area of Criminal Defense, an honor only given to less than 2.5% of all Attorneys in Washington State.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  

Field Sobriety Test FAQs and other thoughts

Lately I have had several potential clients accused of DUI meet with me and have some interesting issues with the Field Sobriety Tests or FSTs for short.  The purpose of this article is to kind of clear the air on people’s misconceptions about these tests, whether you should take them, and how accurate they are.The FSTs are a battery of tests that police officers will ask that you complete, usually while on the side of the road, when investigating for DUI, so they can “make sure you aren’t too impaired to drive.”  These tests are completely voluntary and you have the option to decline them.  Since they are voluntary.  Don't do the Field Sobriety tests!  Let me repeat, don’t do these tests, I cant tell you how many former clients I have still do these tests.  Remember they don’t satisfy any court requirement and they usually only incriminate you further on your DUI. 

So what are they?  There are 3 main SFST’s that are employed by most of the law enforcement agencies in Washington State when investigating a DUI

1.  The first is one of the most well known among civilians – the officer waiving a pen in front of your face and telling you to follow it with your eyes. This test is known as Horizontal Gaze Nystagmus (HGN). The officer will slowly move a stimulus (usually a pen) in front of your eye (right to left, or left to right) to determine whether your eyes are able to track the pen in a smooth manner (checking for nystagmus – an involuntary jerking of your eyes).

2.  The second test that will usually be asked to complete is the Walk and Turn. The officer will have you stand in a starting position while you are listening to his instructions. You will then take 9 heel-to-toe steps, turn and take 9 heel-to-toe steps back to the start line. This is considered a “Divided Attention” test (i.e you will need to concentrate on two things at one – listening to directions while maintaining the start position but not actually starting).

3.  The last of the SFST’s is the One Leg Stand.  Here the officer will have you maintain a start position while explaining the directions (another “dividend attention” test). Once the officer instructs you to begin, you will raise one leg approximately 6 inches off of the ground with your foot pointed out and count out loud (one-one-thousand, two-one thousand, three-one thousand) until they tell you to stop.  Which is supposed to happen after 30 seconds. 

Now there are some other field sobriety tests that can be requested of you, usually Seattle Police Department Officers will request you complete these tests in addition to the main three.  Typically you will see these from some of the members of the DUI squad.  

The other field sobriety tests include:

·       Add 20 + 21

·       saying ABC’s (not singing),

·       counting backwards between two numbers,

·       finger dexterity (finger to nose),

·       Romberg Test (you stand still with feet together, arms at sides, head back, and eyes closed – the officer will check for swaying).

So how accurate are these field sobriety tests?  Well there was some studies done by the National Highway Traffic Safety Administration back in the late 70’s and early 80’s.  Beginning in late 1975, the Southern California Research Institute under the guidance of NHTSA traveled to law enforcement agencies through the US to select the most commonly used field sobriety tests.  Six tests were used in the initial stages of this study.

Laboratory research indicated that three of these tests, when administered in a standardized manner, were a highly accurate and reliable battery of tests for distinguishing alcohol levels about 0.10.  NHTSA analyzed the laboratory test date and found: HGN, by itself, was 77% accurate; WAT, by itself was 68% accurate, and OLS, by itself was 65% accurate.  When HGN and the WAT were combined an 80% accuracy was achieved. 

Now let me preface these results for a minute.  These tests were conducted in controlled environments.  Meaning they were done indoors, on a level surface, with good lighting, and performed by people with nothing to lose.  This is what most police officers, and prosecutors don’t understand.  When a person is on the side of I5, with cars speeding by them, its 20 degree outside, the officers overhead lights on blinking, they are scared and never been in trouble before, facing the strong likelihood of going to jail.  Obviously this is going to affect how a person does on these roadside gymnastics tests.  Imagine taking a test in school, and if you didn’t get a “B” you would go to jail.  That’s a lot of pressure if you ask me.  In addition to that these tests in my opinion are nothing but junk science.  But that’s for another blog. 

In summary, remember to talk to an attorney before you do these tests.  If you have had alcohol to drink, and the police officer smells an odor, chances are you’re going to get arrested for a DUI.  Regardless if you do these tests are not.  So you might as well make things easier on yourself, and your DUI Attorney and politely decline.  If at any time you ever have a question when you’re being investigated by a police officer always ask to speak with an attorney.  Seriously.  You can call me anytime.  24/7.  I will always pick up.  Or you can ask to speak with a public defender.  Usually police officers have that number on speed dial.   

Seattle DUI Attorney