You’re a medical marijuana patient, and a police officer pulls you over and says he smells pot. So you immediately show him your ID card and talk about how long it’s been since you’ve medicated.
Smart move? Not according to ex-judge Leonard Frieling, who says this approach will likely result in a one-way ticket to jail.
As we pointed out in the profile linked above, Frieling is a former municipal court judge for the City of Lafayette who quit his job in 2007 over marijuana policy. He’s now a Boulder-based criminal defense attorney, a cannabis advocate and a member of LEAP: Law Enforcement Against Prohibition, a national organization that backs the Regulate Marijuana Like Alcohol Act of 2012, for which he and fellow LEAP rep Tony Ryan collected signatures last August.
This evening at 7 p.m. mountain time, Frieling will be conducting a live teleclass under the auspices of the Cannabis Therapy Institute about medical marijuana and DUID; for details about how to take part, click here. But as a preview, he offers the following advice: “In general, there are two ways to deal with cops. You tell them the truth, or you shut the fuck up.”
And when it comes to a traffic stop involving a medical marijuana patient, he advises the latter.
According to Frieling, patients and those who use alcohol “come at this from the perspective of ‘How do I get away with it?’ And that’s an overall losing strategy. That’s planning to lose. And I’d just as soon plan to win.”
With that in mind, he tells his clients, “Don’t drive impaired. Don’t break two laws at the same time. And don’t confess,” which individuals are essentially doing in the view of most police officers when they volunteer their status as a medical marijuana patient. He offers the following example.
“A cop pulls someone over and says, ‘What’s that I smell?’ And the patient says, ‘I have a license, and here’s all my pot. And yes, I smoked, but it was a couple of hours ago.’”
By making this admission, Frieling maintains, the patient immediately moves the case into tricky territory. “Suddenly, we’re arguing about how long it affects you — and that’s a harder argument to make.”
Indeed it is, as the Colorado legislature discovered earlier this year.
Representative Claire Levy sponsored HB 1261, a bill to set THC driving limits. Problem is, THC impairment isn’t nearly as easy to measure as the effect of alcohol, differing from individual to individual. As evidence, note the blood-test results of Westword medical marijuana critic William Breathes, which showed he was nearly triple the proposed 5 nanogram per milliliter of blood standard even when sober.
Frieling, right, with fellow LEAP member Tony Ryan, during a signature collection event in August.
Following a post about Breathes’s test and other similar information, the legislature shelved Levy’s bill, which had previously seemed like a lock to pass. But that doesn’t mean the issue has been resolved.
“If you get an inexperienced smoker who smokes some half-decent pot and hops in his car and drives away, he may well be impaired,” Frieling acknowledges. “But if you take an experienced user, a person who smokes a lot and has been doing it for a long time, then the same [THC blood] number probably won’t impair him, and may arguably improve some parts of his driving. And residual THC may stay at higher levels for longer than we thought. A long-term heavy smoker who smoked yesterday may still hit a high number 24 hours later when they’re clearly not being affected anymore.”
Of course, many of Frieling’s cases aren’t that complicated; he says they involve things like “the roach in the ashtray.” That’s why he tells patients “to have no marijuana in the passenger compartment under any circumstances. If you’ve got to have it in the car, keep it in the trunk with a Xerox copy of the license — the license that says ‘Don’t duplicate’ — wrapped around it. Because the [patient] license is a defense to possession, not a defense to impaired driving. Then if they say, ‘This is a copy, do you have your license?,’ you say, ‘Of course,’ and show it to them.”
And if, before any of that happens, an officer asks, “What’s that I smell?,” how should a patient respond? In Frieling’s words, “You can say, ‘I don’t smell anything,’ or, ‘If you want to have any discussions like that, they have to be arranged through my lawyer.’”
Or, if possible, he reiterates, “shut the fuck up.”