Judging Traffic (August 2019)

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Issue Brief On Marijuana and Traffic Cases: Testing, Limits, and Research

The latest Traffic Resource Center Issue Brief has been released. The document gives an overview of the testing, limits, and research associated with marijuana and traffic cases. The latest brief along with all issue briefs released in the last 5 years can be found on the Issue Briefs website.

Pennsylvania: Marijuana Odor Alone No Longer Probable Cause For Vehicle Search

A Pennsylvania trial court ruled in August that the smell of marijuana odor in a vehicle alone can no longer provide probable cause to search the vehicle. Commonwealth vs. Timothy Oliver Barr, II began when Barr's wife was initially pulled over by troopers for failure to stop at the white line at a stop sign; Barr himself was a passenger. On approaching the vehicle, the first trooper "smelled the odor of burnt marijuana." During conversations with the couple the second trooper smelled "both burnt and raw marijuana through the open door of the vehicle." The second trooper indicated that under existing Pennsylvania case law (Commonwealth v. Gary, 625 Pa. 183 (2014)) the marijuana odor gave probable cause for a vehicle search. The defendant presented a medical marijuana card allowing him to possess and ingest medical marijuana. The trooper mistakenly believed that medical marijuana via vaping pen was odorless and therefore executed the search finding bags containing marijuana and a gun (the defendant was prohibited from possessing a firearm due to a prior conviction). At trial a leading Pennsylvania physician in the area of medical marijuana testified that here was no physical difference between green leafy medical marijuana and "regular" marijuana found on the street. Moreover, the physician confirmed that the use of a vaping pen (the only permitted way to smoke medical marijuana under state regulations) did produce odor. Lehigh County Court of Common Pleas Judge Maria Dantos wrote "the 'plain smell' of marijuana alone no longer provides authorities with probable cause to conduct a search of a subject vehicle" and concluded that the evidence from the search must be suppressed.

Study Examines DUI Enforcement and Alcohol-Related Crashes Over 20 Years

A recent published in the American Journal of Criminal Justice examined the impact of DUI enforcement efforts on fatal alcohol-related crashes. Using data from several sources spanning over 20 years, the research indicated that more DUI arrests resulted in decreased fatal alcohol-related crashes. However, there was a point of diminishing returns, DUI enforcement itself would not reduce the number of fatal alcohol-related crashes to zero. Other factors cited as possibly contributing to these crashes included distractions, speeding, and traffic engineering.

Distracted Driving Not Just Limited To Millennials

A recent global survey conducted by Liberty Mutual Insurance found large majorities of American millennials admitted to engaging in distracted driving activities such as glancing at and sending emails and texts. The study also indicated these activities were not just limited to the young: 66% of Generation X and 43% of Baby Boomers admit to such glances as well. According to an April 2019 report from the National Highway Traffic Safety Administration, distracted driving contributed to 3,166 traffic deaths in 2017.

Textalyzer: A Breathalyzer For Cell Phones?

On the subject of distracted driving is the question of textalyzers. These devices allow for police to plug into the cell phones of drivers to scan for the recent activity of a driver, including possible driving-while-texting. Legislation to permit their use has been filed in New York and Nevada in recent years. An article in the upcoming George Mason University Civil Rights Law Journal (set to be released shortly online, currently available on Westlaw and Lexis at 29 Geo. Mason U. Civ. Rts. L.J. 301) examines the brief history of these devices and the related Fourth Amendment issues associated with them.

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