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‘You will get caught’ | Police in Virginia on the lookout for those driving while high

Unlike the .08 legal limit for alcohol, there’s no threshold for weed.

FAIRFAX COUNTY, Va. — The Fairfax County Police Department isn’t just on the hunt for those driving drunk, but officers are looking for people driving while high.

Helping lead what’s known as the DWI Enforcement Squad is 10-year veteran of the force Officer James Burleson.

“I just found that I had a knack for finding DUIs, for running into them,” Officer Burleson said.

Fairfax County created this squad in 2016, primarily steering drunk drivers off the road. With 10 members, the squad is specially trained to tell if someone is driving under the influence of alcohol, or drugs and what type.

They arrest dozens of people each year in the county for driving under the influence of drugs. In 2018, 82 people were arrested. That number dropped to 71 the following year, but jumped to 88 in 2020. So far this year, 49 drivers have been arrested.

Credit: WUSA
Fairfax County Police PFC James Burleson

According to the National Highway Traffic Safety Administration, cannabis is the drug found most often in the blood of drivers involved in crashes, including deadly accidents.

With the recreational use of marijuana now legal in the commonwealth, the squad’s job is more complex.

“Virginia hasn’t set any sort of presumptive limit for THC,” Officer Burleson explained.

RELATED: VERIFY: The do's and don'ts of weed under Virginia's new laws

Unlike the .08 legal limit for alcohol, there’s no threshold for weed.

While smoking and driving is illegal, an officer must dig deeper to determine if a driver is truly impaired because of marijuana in their system.

“You can’t arrest that person just because well, you know, there’s something wrong here, but I can’t put my finger on it,” Officer Burleson said.

That’s why Fairfax County is training more officers to be like drug recognition experts. They’ll have the basic knowledge to determine on scene if someone is driving under the influence of marijuana.

Credit: WUSA
DWI checkpoint in Fairfax County, Va.

It must be extremely clear before officers can make an arrest, Burleson explained.

He said some drivers make it obvious because either there’s marijuana in the car, a driver is going too slow or in most cases, speeding.

“They blow my doors off," Burleson recalls. “It goes back to that information processing. They’re not recognizing, number one, the speed that they’re going and number two, that’s a marked cruiser, I should probably slow down.”

After ruling out alcohol, the decision to arrest someone for driving under the influence of drugs is primarily based on the officer’s observations. This includes listening to the driver’s speech, looking at their eyes, behavioral and psychological tests, a pulse check and assessing muscle tone.

Unlike a breathalyzer test for alcohol, only a blood test can measure the degree of impairment from THC (delta-9-tetrahydrocannabinol), the main psychoactive component in cannabis.

Virginia Defense Attorney and Former Prosecutor Todd Stone said officers have no wiggle-room because a DUID charge can linger until lab test results are finalized.

"You don't have that immediate barometer like you would with alcohol and a breath test. So, you have to submit it to a lab, and it could take a couple of months before you get some result,” Stone explained.

Credit: WUSA
Virginia Defense Attorney and Former Prosecutor, Todd Stone (right)

Even with the results, Stone said it can still be a challenge because an officer will have to prove, the driver was impaired due to the marijuana, which affects everyone differently.

"It's always been true that the majority of the driving under the influence cases are alcohol cases because it's easier to see that level, smell that alcohol and make the decision to place someone under arrest,” Stone continued.

Additionally, the smell of marijuana in a driver’s car is not grounds for a search or charges.

Even with so much grey area to sort out in the courts and the Virginia General Assembly, Officer Burleson hopes his team's presence will make people pause before using pot and getting behind the wheel.

RELATED: Virginia looking for its first cannabis attorney

"If you feel different, you drive different,” he said.

If a driver is convicted of driving under the influence of alcohol or drugs, the first offense is a Class 1 misdemeanor, with a mandatory, minimum $250 fine and driver’s license revoked for one year.

Using or consuming marijuana in a car is a Class 4 misdemeanor, which also comes with a $250 fine.

WATCH NEXT: What are you legally allowed to do under the new legalized marijuana laws in Virginia?

Jenn Michelle Pedini of Virginia's National Organization for the Reform of Marijuana Laws answers questions about the implications of legalized marijuana in Virginia.

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