You and a friend are driving home after 1 a.m. from a party. Some friends at the party, including your passenger, had been smoking marijuana (“weed”), but you had chosen not to. Your passenger starts smoking the remnants of a joint in the car as you drive her home. You refrain from smoking with her, and ask her to get rid of it. Although you do smoke weed on occasion, you are being careful. The last time you smoked was the previous afternoon, and you are no longer feeling the affects, as it was at least 8 hours ago. You feel completely safe to drive.

After you drop your friend off you continue driving yourself home. Unknown to you, however, your license plate light bulb has burnt out. Several blocks before you reach home you are pulled over by police for driving without your license plate being illuminated [an equipment violation under Wisconsin Statutes section 347.13(3).

You pull over and the officer walks up to your now rolled-down driver’s window. He says he smells the odor of marijuana in the car and asks you to step out. He pats you down and finds nothing illegal on your person. The office then asks to search your car, and you agree. You were not smoking so you feel you have nothing to hide. However, during the search he finds the remnants of your friend’s burnt joint in your ashtray.

The officer asks you if you have been smoking marijuana and you say “No, a friend of mine must have left that in my car.” He asks for your friend’s name and you say you don’t want to get your friend in trouble. The officer says your eyes look bloodshot, which his training tells him is a sign of marijuana intoxication. You tell him you have been up since early that morning and are tired.

The officer next asks if you will perform some field sobriety tests to see if you are impaired. You agree, knowing that you are not impaired. As expected, you perform well on all of these tests.

The officer says he is going to write you a citation for possession of THC because of the remnants of a joint he found in your ashtray. In trying to talk him out of it you tell him, “Look, I would tell you honestly if it was mine. I do smoke marijuana sometimes, so I would own up to it if it was mine.” The officer then asks you when the last time you smoked marijuana was. You tell him that probably smoked 8 hours ago. The officer places you under arrest for operating a motor vehicle with a detectable amount of a restricted controlled substance in your blood — a violation of section 346.63 (1)(am) of the Wisconsin Statutes.

During the processing of your OWI citation the officer reads you a form (entitled “Informing the Accused”), and asks if you will agree to a chemical test of your blood. Still convinced that you are innocent, because you are not in the least “high” or impaired, you agree to have your blood drawn and sent away for testing.

A month later you receive the blood test result in the mail with a “Notice of Intent to Suspend” your driver’s license. You do not know how to read the blood test result. However, the cover letter you received from the officer states that the blood test shows that you had a “detectable amount” of a cannabinoid in your blood.

In Wisconsin it is, in fact, illegal to drive with ANY amount of a restricted controlled substance (such as a psychoactive metabolite/cannabinoid of marijuana) in your blood. It matters not that you are completely “straight,” sober or not high in the least. If law enforcement legally pulls you over while driving AND legally obtains a blood sample from you that contains a trace of potentially psychoactive THC, the State can prosecute you and you can be found guilty of a version of driving under the influence. This type of law is known as a “strict liability” offense or a “zero tolerance” offense.

As long as marijuana possession remains a criminal offense in Wisconsin, there is unlikely to be a change in this zero tolerance version of OWI, as unfair and irrational as it is. We might all agree that it should be illegal to drive while impaired. However, this law makes it illegal to drive while completely sober and unimpaired. As long as you are a pot smoker who may have smoked in the recent past, you are at risk of violating this law while driving.

Undoubtedly, an unintended consequence of this type of unfair law is that marijuana smokers will learn to lie and to (politely) not cooperate. Looking at this same hypothetical encounter, there are several decision points where this unfortunate motorist may have changed his fate.

• He could have refused to allow the officer to search his car. Perhaps the officer could legally justify the search because of the odor of marijuana, but perhaps not. Refusing to consent to the search would at least create a legal issue for the motorist to defend against this unfair prosecution.
• He could have chosen NOT to tell the officer that he was a weed smoker, and that he had smoked weed in the recent past. This admission arguably gave the officer legal justification to arrest the motorist for OWI and to request a blood draw. Without this admission the officer’s actions would have been a lot more difficult to justify to a judge.
• He could have REFUSED the blood draw. Maybe the officer would have attempted to obtain a search warrant for the motorists blood anyway. However, given the motorists good performance on the sobriety tests, the justification for a blood draw is questionable.

If a law encourages otherwise honest individuals to lie to police, then that law should be seriously questioned. While we wait for our elected officials to change this law (could be a very long wait) your actions during an encounter of this kind will have a significant impact on the final result. We do not encourage you to lie to police. However, it is your right to refuse to answer questions that will elicit a potentially incriminating response, to provide consent to search your car, or to give permission to take your blood. You will likely still need an aggressive lawyer to fight to defend those rights, but you will have given that lawyer a lot more to work with if you attempt to protect your rights during the encounter.