THE OGATA MEDICAL MARIJUANA USER S GUIDE FOR DRIVERS

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1 THE OGATA MEDICAL MARIJUANA USER S GUIDE FOR DRIVERS IF YOU DRIVE AND HAVE A MEDICAL MARIJUANA CARD, YOU MAY BE AT RISK. KNOW YOUR RIGHTS AND HOW NEVADA S DUI LAW TARGETS MARIJUANA. FIRST EDITION The Law Offices of Garrett T. Ogata 3841 W. Charleston Blvd Ste 205 Las Vegas, Nevada

2 FOREWARD Regardless of all the legal training, law school, attorney- client relationships, and trials, the one constant struggle I have observed after 14 years of practicing law in the State of Nevada, is that DUI law and the justice system is an intimidating and confusing process, thus making it hard for attorneys and clients to navigate through. This is what motivated me to write a simple and easy to understand Medical Marijuana and DUI guide that hopefully someone who has never been charged with a crime or received any legal training can read and reference and therefore be more informed. Many law abiding citizens have gone through all the requirements to get their Medical Marijuana Card. Those who have, know the requirements, limitations and protections the card provides lawful users of medical marijuana. What they do not know is that Nevada s DUI law places many lawful users at risk of getting a DUI under the prohibited substance statute that relies on per se limits for marijuana and its metabolite to determine you are under the influence. Even if a medical marijuana user is below these per se limits, they still face the dangers of being charged with a DUI under the impairment theory. Make no mistake about it, your Medical Marijuana card is no defense to a DUI. If you are impaired by marijuana, you should NOT be operating a vehicle. This is a violation of the law and places you and innocent others in danger. That being said, everyone should be on notice of what the law is and know their constitutional rights and how to invoke them. I have found that besides the actual criminal charge(s) one may be facing, the unknown of what is to come is probably the biggest cause of worry and stress on a person charged with a DUI. Hopefully, with the use graphics and short explanations contained in my guide, one can gain an insight into Nevada s DUI laws and our criminal justice system. And with this knowledge, your journey will be a less stressful and worrisome. it. I hope you find my guide informative and easy to understand. Save it, print it, and share Sincerely, Garrett T. Ogata, Esq. i.

3 BIOGRAPHY National Criminal Defense College (NCDC) American Trial Lawyers Association National College DUI Defense (NCDD Attorney Garrett. T. Ogata Garrett T. Ogata attended The University of Maryland School of Law in Baltimore, Maryland. He began his career as a law clerk for Judge Michael Douglas in Clark County, Nevada. He focuses his practice in DUI defense and criminal defense and is licensed to practice law in Nevada, California and Utah. National Organizations NORML Legal Committee National Association of Criminal Defense Lawyers Instructor National Highway Traffic Safety Administration (NHTSA) Nevada Associations State Bar of Nevada Nevada Trial Lawyers association Clark County Bar Association California Associations State Bar of California Utah Associations State Bar of Utah Education California State University, Los Angeles University of Maryland School of Law (Juris Doctorate) ii.

4 INDEX Foreword.i Biography..ii Index iii Traffic Stops & Your Rights 1 DUI Prohibited Substance & Impairment 3 Medical Marijuana and DUI.4 Breath v. Blood.5 DUI Process.6 DMV License Suspension..7 DMV Process..8 Ogata DUI Guide.. 8 iii.

5 TRAFFIC STOPS AND YOUR RIGHTS Sadly, most people do not know their rights and it is up to you to invoke these rights. Most Nevadans do not know what their rights are when stopped or how to respond to law enforcement while invoking these rights. One of the most common situations where you will be stopped and confronted by law enforcement is a traffic stop. These could be a result of a simple traffic violation or even a DUI/DWI check point. However, no matter why the police stopped you, you still have rights that need to be invoked by you whether you are innocent or guilty. We all know the saying, you have the right to remain silent, but rarely does a person stay silent. If you are driving, Nevada law requires you to have your driver s license, registration, and insurance. You will need to show these three things. You do not need to answer any questions. Once you start opening your mouth or responding to law enforcement s questions you are putting yourself at risk and not affording yourself the protections of the 5 th Amendment. You have the right to remain silent and a right to an attorney. It is perfectly fine for you to say, that you will not make any statements, nor will you do any Field Sobriety Tests. Silence alone even after your Miranda rights have been read does not indicate you are invoking your rights and law enforcement will continue to question you hoping that you will eventually break and make a statement. You must state, I m invoking my 5 th Amendment rights and I will not answer any questions until I have spoken to my attorney. Until you have clearly stated that you are invoking your 5 th Amendment rights, law enforcement will say anything to get you to speak or make a statement even after you say you will not answer any of their questions and want your attorney. They may even get angry, make promises or threats; but do not give in, even if they decide to arrest you. This may be a likely scenario if you refuse to answer questions regarding drinking and driving or what medications you are taking. In Nevada, you can refuse to do field sobriety tests and preliminary breath test (a small handheld Breathalyzer machine done at the arrest site). Your refusal will not please law enforcement and can lead to more questions and threats. Without making statements, admissions or doing field sobriety tests, the police may not have enough probable cause to arrest you for a DUI/DWI. However, law enforcement still may arrest you even though they do not have enough probable cause; this is why you fight against such unreasonable searches and seizures in court. 1

6 If they suspect that you are under the influence of a prohibited substance or controlled substance, then this may lead to a search of your body via a blood test. Law enforcement typically suspects this when someone answers the officer s questions regarding doctor s care and what medications they are taking. Even if you are taking legally prescribed medication, the officer s knowledge of this may lead to your arrest and a blood test. Always request a warrant and never consent to a blood test. However, officers may use force to draw your blood if they choose a blood test and you refuse. Do not fight or resist officers at this point for your own safety. Do demand a warrant and state you do not consent. If officers do obtain a warrant then you must comply, but never verbally consent. Once you are arrested, you should request a Breathalyzer test over a blood test to be done at the police station. Your choice should be a Breathalyzer test. See Breath v. Blood, p. 5. You may also hear law enforcement ask if they may search your car. If they ask, say I do not consent to any searches. The 4 th Amendment protects people from unreasonable searches and seizures, but if law enforcement gets your permission to search your vehicle, belongings, or person, then you give up your 4 th Amendment protection. Do not sign a consent to search form. An example of someone invoking their rights during a traffic stop with law enforcement can be found at However, how law enforcement reacts may vary and this is a good example of law enforcement respecting, after a few tries, your rights and allowing you to go on your way. In fact, you should search the web for traffic stops to get an idea what it is like to interact with law enforcement. Visit for more information on police encounters and your rights. Here is a list of things to know if arrested or questioned by law enforcement: 1. Always be polite and respectful to the police officers. 2. If detained for a DUI, politely REFUSE to do ANY field sobriety test or on scene breath test (this is the small portable device, NOT to be confused with the Breathalyzer machine at the jail or in the van). 3. DO NOT answer any questions about alcohol consumption. It is best to stay silent about any and all facts of your case. 4. DO NOT answer any questions about doctor s care or any medications you are on, even if you have a medical marijuana card or doctor s prescription. 5. NEVER consent to any search of your vehicle, home or person. 6. While in custody, DO NOT discuss your case with anybody in the jail; they may be informants. 7. When you are released, NEVER make any contact with the police, District Attorney or Investigator without first consulting your attorney. These people are not here to help you. 8. DO NOT try to make any deals with the police. They can and will lie to get you to confess to a crime with the promise that your case will be dropped and/or that you will be released from jail. DO NOT believe them! 2

7 Remember, there is no way to predict how law enforcement will react; they might respect your rights or they might threaten you, make promises, or lie to you in order to get you to incriminate yourself. Politely refuse and know that you may be going to jail, one way or another, but at least your constitutionally protected rights will be there to use as a defense. DUI PROHIBITED SUBSTANCE AND IMPAIRMENT NRS 484C.110 Many people would be surprised to know that you do not need to have any alcohol in your system to be charged with a DUI. Being under the influence of marijuana or other prohibited substances can also lead to a DUI charge. A person who cannot safely drive or assert actual physical control of a vehicle due to the use of marijuana, prohibited substances, chemicals, organic solvents, compounds, or controlled substances can be charged with a DUI. This would be what is known as driving under the influence of a controlled substance for impaired driving. Prosecutors would have to prove from the totality of the circumstances that the substance(s) rendered you incapable of safely driving or exercising actual physical control of the vehicle. See Cotter v. State, 738 P.2d 506 (Nev. 1987). Unfortunately for many people you can also be charged with a DUI related to marijuana use even if you are not too intoxicated to drive safely. This is known as a per se violation. A per se violation occurs if a person s blood or urine has a certain concentration of marijuana or other prohibited substances even if he or she is fully capable of driving safely. Your medical marijuana card does not protect you from getting a DUI. In fact, it may unfairly lead the police to believe you are impaired and warrant a blood test. If a person s urine contains ten (10) nano- grams or more of marijuana per milliliter then they have committed a per se violation. A person with a concentration of two (2) nano- grams per milliliter in their blood has also committed a per se violation. If a person has a concentration of marijuana metabolite equal to or greater than fifteen (15) nano- grams in their urine or five (5) nano- grams in their blood they have also violated Nevada s prohibited substance per se DUI statute. Other prohibited substances to name a few include, cocaine, heroin, and meth, which all have a per se limit as well. Furthermore, a controlled substance such as pain medications or antidepressants like Xanax, even if legally prescribed by your doctor, if found in your blood may be used to prove you were impaired. 3

8 Driving under the influence of a prohibited substance is determined by a certain number of nanograms per milliliter of blood, just as a DUI alcohol has a per se violation level of.08 BAC or more. A simple traffic stop may lead to a DUI if law enforcement decides to ask questions regarding any medication you may be taking. This is why it is important to exercise your 5 th Amendment right to remain silent. Nevada Revised Statute (NRS) 484C.110 has stringent and sometimes difficult to understand language concerning marijuana, prohibited, and controlled substances related to DUIs. Due to this complexity it is very important to obtain a lawyer to fully explain the legal issues. MEDICAL MARIJUANA AND DUI NRS 453A AND NRS 484C.110 If one possesses marijuana in the State of Nevada, one is either possessing marijuana legally or illegally. The only way to legally have possession of marijuana is to have a valid medical marijuana card. If you have a valid marijuana card or are thinking about getting one, there are issues to be aware of when it comes to operating a motor vehicle. Let s be clear, having a marijuana card is not a defense to a DUI and one should not drive while under the influence or impaired. It is true that having a valid medical marijuana card is not to be used as probable cause to search a person or the person s property. The main issue is one of privacy. If one has a medical marijuana card, then the DMV will become involved in the issuance and registry of the medical marijuana card. With DMV involvement comes the stark fact that there is now a record that you have a license to use medical marijuana. This record now shows up on your scope, similar to a concealed firearm permit or a criminal record. Police may now have notice of what you may legally have prescribed to you. If someone with medical marijuana card was pulled over for a simple speeding infraction, the officer may then become aware of his or her medical marijuana license. This then can lead to a question of, are you on any medication? If one answers for example, yes, I have Glaucoma and I used marijuana yesterday morning for treatment purposes, then one has just given the officer reason to suspect you are driving under the influence of a prohibited substance under NRS 484C.110. This is why one should be aware of their rights and always invoke them. See Traffic Stops and Your Rights, p. 1. 4

9 If this stop does lead to one s arrest for a DUI, then a blood test will be given to determine THC or Metabolite levels for purposes of Nevada s prohibited substance per se DUI. If you have used marijuana legally and your blood has been tested, chances are you may fail the per se DUI limit for marijuana or you may have something else in your system and depending on the facts that may still lead prosecutors to pursue driving while impaired even if your levels are below the per se limits. Nevada s prohibitive substance levels for marijuana are extremely low: Marijuana per se limit is only 2 nanograms per milliliter of blood Marijuana metabolite is only 5 nanograms per milliliter of blood As you can see, these levels are extremely low and place all legal users of marijuana at risk. Until the State takes a hard look at the science behind marijuana and impairment, and this does not seem likely, chances are many medical marijuana users are driving under the influence of marijuana and will fail a blood test. Unfortunately, the scenario above is all too common. BREATH v. BLOOD When it comes to testing a person s alcohol concentration (BAC), most people are aware of several options to test this. Typically, the tests used in Nevada are either a Breathalyzer/Intoxilyzer machine or a blood withdrawal. It should be noted that urine is a possibility, but rarely used. When faced with the two tests both are substantially different, yet both seek a common goal (finding your BAC); the question then becomes, which one does one choose? Each test has its own advantages and disadvantages making the choice a confusing matter. Some feel that blood is more accurate and therefore the better choice, while others are scared of needles and will chose a Breathalyzer/Intoxilyzer over the blood test. Truthfully, the main difference is how a criminal defense attorney will build a defense and attack the evidence. Furthermore, it also will determine the time frame when one receives a notice from the DMV suspending one s license. See DMV and License Suspension, p. 7. 5

10 Breathalyzer/Intoxilyzer Testing A Breathalyzer/Intoxilyzer test tends to be the most error prone test of them all and an experienced Attorney will know this and build a defense around this. There can be issues with the machine not working properly, operator error in obtaining the results, not obtaining results within 2 hours of driving, the test subject s own conditions that may impact the results and more. A breath test machine allows for a hat trick of sorts of an attack on the machine, operator, and test subject. Blood Testing This tends to be a more accurate of the testing methods; after all it is testing the B in BAC (Blood Alcohol Content). If your goal is to have an accurate test then this would be the route to go, but it gives your Attorney less areas to focus his or hers defense on. There are defenses of course. An attorney can challenge the blood by having it retested, chain of custody issues, the lab technician not trained and certified, test was not within 2 hours of driving, retrograde extrapolation defenses, and if the blood was taken without a warrant. Do not consent to a blood draw. Keep in mind, if one has blood retested, the prosecution may have it retested for any other prohibited/controlled substance as well which can lead to a per se prohibited substance violation or impaired driving. It is ultimately up to the individual to choose what test is right for them. However, from years of experience we have found Breathalyzer/Intoxilyzer test results provide for a better defense. DUI PROCESS 6

11 DMV License Suspension A DUI charge brings several negative consequences with it. If all of the fines and possible jail time weren t enough, your license is also suspended due to the charge. License suspension can be detrimental to a person s livelihood. Unfortunately the DMV can suspend your license even if the DUI charges against you are dropped. Nevada Revised Statutes (NRS) 484C.220 and 484C.230 relate to DUIs and the license suspension that follows one. There are two ways that a license can be suspended stemming from a DUI. Blowing a 0.08 on a breathalyzer administered by a police officer will lead him to take your license and provide you with a seven (7) day temporary license. If a blood test is performed you will receive your license back from the officer. In four to six months the blood test results will come back, and if that test shows a 0.08 blood alcohol content or a prohibited substance, the Nevada DMV will once again try to suspend your driving privileges/driver s license. Once your license has been taken or suspended you must request a temporary license and an administrative hearing. You have seven (7) days to request this. The hearing is an administrative matter which is not connected with the criminal charges against you. The temporary license will be valid until the day of your DMV hearing. If during this hearing the DMV finds you in violation of the illegal per se law your license will be suspended even if you were not convicted of a DUI in state criminal court. The burden of proof is much lower in the DMV court so the chances of being found in violation are much higher. The DMV is a powerful statewide agency that has control over whether you can drive or not. No one should take on any state agency by themselves even if there is no risk of jail time. The inability to drive can hinder many areas of your life so an attorney should work hard to minimize its damaging effects. In Summary: A DUI will trigger a mandatory license suspension. Upon blowing a 0.08 or greater on a Breathalyzer, an officer will provide you with a temporary license that is good for 7 days to drive on. YOU HAVE 7 DAYS TO REQUEST A TEMPORARY LICENSE AND AN ADMINISTRATIVE HEARING. DISCLAIMER: This guide is for information purposes only and is not legal advice. Nor does this guide create an attorney- client relationship. Always seek the advice of a licensed attorney. Nevada law does change so it is 7

12 If a blood test has been performed, the officer will give you back your license to drive on, but once the test results comeback, typically in 4 to 6 months and if the test shows 0.08 or greater, or a prohibited substance, you will be notified by the DMV by mail that your license will be suspended in 7 days. You have a right to an administrative hearing, separate from the criminal court hearing, and a temporary license if requested in 7 days. Your temporary license is valid until the administrative hearing. If the DMV finds you in violation of the illegal per se law, your license will be suspended accordingly; if you are not in violation, then your license will not be revoked. DMV hearings are considered administrative in nature; therefore the burden of proof is much lower than in criminal court and driving is a privilege, not a Constitutional right. Even if you are not charged with a DUI in criminal court, if the DMV found you in violation of the illegal per se law, your license suspension still remains. For additional information go to: DMV PROCESS 8