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Odor of Marijuana Sufficient to Arrest for DUI

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There is probable cause to arrest driver for DUI when officer detects strong odor of marijuana emanating from vehicle

Image result for police car and driver pulled over

By Elisabeth K.H. Pasqualini, DUI Defense Lawyer, Harrisburg, PA

There are several types of driving under the influence ("DUI") offenses in Pennsylvania.  Among them, DUI based upon the consumption of alcohol to such a degree that renders a driver incapable of safe driving.  That's the typical DUI.  It generally requires that the driver have a .08% blood alcohol content or higher at the time of driving.  However, also there is DUI based upon the consumption of a controlled substance, such as marijuana.  There is no minimum required level of marijuana ("THC" is the critical ingredient) needed to be in one's system to be considered DUI.

In Commonwealth v. Jones, 2015 Pa. Super. LEXIS 424, 2015 PA Super 160 (Pa. Super. Ct. 2015), a driver was pulled over and found to have a strong odor of marijuana emanating from his vehicle.  He was arrested and charged with DUI.  He argued, unsuccessfully, that the mere odor of marijuana alone was not sufficient to arrest him for DUI.  The Court disagreed and found that unlike an alcohol based DUI, there is no minimum requirement for marijuana or THC to be in one's system to be considered DUI.  It's any amount.  The distinction here is that one can operate a vehicle after having alcohol and not be in violation of the law.  One cannot have smoked or otherwise ingested marijuana recently and be in compliance with the law.

There would have been a different result possibly if there was not a strong odor of marijuana emanating from the interior compartment of the vehicle.  For instance, if there was only a weak or stale odor of marijuana, one could argue that such an odor was indicative of past use in or around the vehicle and not recently. This would dispel any notion of probable cause that the driver had just used marijuana.

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