Marijuana Breathalyzer and Oregon DUI cases

The marijuana breathalyzer is a device designed to work much like an alcohol breathalyzer. In theory, the test subject blows into the device. The device then reports whether or not the test subject is under the influence of marijuana. However, the current devices cannot measure impairment. They can only estimate the level of THC (Tetrahydrocannabinol; the primary psychoactive ingredient in cannabis) on a test subject’s breath.


Marijuana Breathalyzer and Oregon DUI cases

Image from Hound Labs used under Fair Use doctrine.

Hound Labs Marijuana Breathalyzer

Hound Labs Inc. is an Oakland-based company that has introduced a hand-held portable device that measures the presence of THC in breath. The device is intended to be used roadside by law enforcement. The device requires two breath samples from the test subject (much like Oregon’s Intoxilyzer 8000). The Hound Labs breathalyzer was developed in partnership with scientists at the University of California, Berkeley and it was designed to detect impairment from any recent THC consumption (smoking, vaping, or edibles).

The company boasts that it’s the first company to create a device capable of detecting and measuring THC in breath. They further claim that the device can accurately measure levels to below 500 picograms. The problem with this sort of claim is that it has absolutely nothing to do with whether someone is mentally or physically impaired because people will be affected differently by THC and the level of expelled THC from test subjects will also vary wildly.

Cannabix Technologies Marijuana Breathalyzer

Image from Cannabix Technologies used under Fair Use doctrine.

Cannabix Technologies Marijuana Breathalyzer

Cannabix Technologies Inc. is a Vancouver, B.C. based company that has also developed a marijuana breathalyzer. Cannabix claims that the use of FAIMS (high-field asymmetric waveform ion mobility spectrometry) can detect trace amounts of THC. However, as of the writing of this article, the company has not issued a press release with accuracy figures or– unlike Hound Labs– a field-tested prototype.

Oregon Marijuana Fingerprint Scanner

Image from Intelligent Fingerprinting / Smartox used under Fair Use doctrine.

Intelligent Fingerprinting (distributed by Smartox)

U.K.-based Intelligent Fingerprinting has selected Smartox as its U.S. distributor for a fingerprint scanner which can be calibrated to specific thresholds for marijuana and other types of drugs (including cocaine and opiates). The company claims the readings can then be interpreted to detect recent use and thus impairment. The company hopes the device will be available in 2017 after undergoing validation testing.

Which Marijuana Breathalyzer will be used in Oregon DUI cases?

As of right now, there is no approved marijuana breathalyzer for use in DUI or criminal cases. The technology is still developing, and the legislature has not taken the issue up. Oregon has not selected any specific model– or list of approved models– for the testing of THC, marijuana, or cannabis. Currently the only approved method for drug testing in Oregon criminal cases is through gas chromatography done by the Oregon State Police Crime Lab. The crime lab tests suspected drugs, drug residue, blood, and urine. In DUI cases, typically urine or blood would be tested.

When Oregon finally does adopt a marijuana breathalyzer or “sniffer,” it will likely be subject to the same underlying flaws of alcohol breathalyzers. Accuracy is the most concerning issue with the handheld devices. Also, the detection of drugs or drug metabolites has a poor correlation with impairment. Because Oregon DUI law is concerned with mental or physical impairment, the detection of mere picograms tells a police officer, judge, or jury very little how that quantity would affect a frequent marijuana user, an infrequent marijuana user, a male user vs. a female user, a large-bodied user vs. a small-framed user, etc. For a more detailed discussion of how Oregon law enforcement currently test for marijuana DUI, please see our page on Oregon Marijuana DUI.

By | 2016-10-13T00:19:25+00:00 |Categories: Criminal Defense, DUI|Tags: , , |Comments Off on Marijuana Breathalyzer and Oregon DUI cases

About the Author:

Michael Romano is an Oregon lawyer and attorney focusing on criminal defense, divorce, DUI, and family law. He has law offices in both Portland and Bend Oregon.