Arrested for a Green Tongue by Washington Police Officers?
April 27th, 2009
There is a nationwide push to detect and prosecute DUI cases where the driver is impaired by drugs, not alcohol. In King County and elsewhere in Washington State, DUI defense attorneys are seeing more and more drug DUI arrests that have resulted from examinations of drivers by “DRE” trained officers. “DRE” is short for Drug Recognition Experts – officers who have specialized training intended to enable them to detect drivers who are impaired by drugs. In cases where it is suspected that the driver might be DUI due to marijuana, it is not unusual for the police report to include an observation that the driver had a “green tongue,” and to use this as a justification for the DUI arrest. Reliance upon this observation is encouraged by police DUI training despite the fact that the police DRE instructor training manual requires the instructor to “point out that there are no known studies that confirm marijuana causing a green coating on the tongue.” Appellate courts have twice weighed in on the value of the green tongue observation. In a Washington state case, State v. Wheeler, the Court of Appeals said: “…[We] are skeptical… We can find no case stating that recent marijuana usage leads to a green tongue.” The Wheeler opinion was an “unpublished opinion” and this means that lawyers cannot refer to it when arguing points of law in court. The Utah Court of Appeals, however, did refer to the Wheeler case in a published opinion in the case of State v. Hechtle, issued in April, 2004. The Utah court said: “We note, however, that the State has presented nothing, no scientific studies and no case law or authority, to support the reliability of the trooper’s concern regarding the condition of Hechtle’s tongue.” In a DUI case, every observation used to justify the conclusion that a citizen was driving under the influence of alcohol or drugs should be viewed with a critical eye and scientific justification must be required before such observations may be used as “legal “evidence.