Criminal Defense Lawyers Challenge "Green Tongue" Phenomenon in Drug DUI Cases

In the last ten years, police in Washington State have paid a lot more attention to the problem of drugged drivers.  A rookie cop can detect a driver who has drank too much alcohol, but it takes a little training and experience to determine if a driver has been using controlled substances such as cocaine, methamphetamine, marijuana or prescription pills.   After completing certain training, an officer can become a Drug Recognition Expert or “DRE”.   We have many such DRE’s here in Washington, especially in Spokane.  The problem is that people are catching on that the so-called drug recognition “experts” really are basing their opinions on many things we do not really recognize as science.  Take for example, the green tongue phenomenon.  The National Highway Traffic Safety Administration warns of the following characteristics of a marijuana DUI: “… characteristic indicators may include odor of marijuana in car or on subject’s breath, marijuana debris in mouth, green coating of tongue, bloodshot eyes, body and eyelid tremors, relaxed inhibitions, incomplete thought process, and poor performance on field sobriety tests.”  Criminal defense lawyers are not the only ones questioning the validity of this “green tongue” thing.  The Washington Court of Appeals also questioned whether a green tongue establishes probable cause for anything.  The court agreed with the defense lawyer that no probable cause existed, explaining:

Trooper Lane contends that a green tongue is indicative of recent marijuana use. Even assuming he is correct, the absence of any other indicators of recent marijuana usage, combined with the many innocuous ways to get a green tongue, indicate a lack of reasonable suspicion.  Although we assume the officer’s assertion to be true for purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue. The only case we could find that remotely supports such a proposition is State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000), wherein the opinion’s fact section mentions that the defendant, who had admitted to recent marijuana usage, also had a green tongue. Beyond this observation, however, the court never analyzes whether the green tongue and the recent marijuana usage are linked. And the officer who made the observation does not assert a connection between the two.

To you non-lawyers out there, that is the Court of Appeals basically politely telling the Washington State Patrol DRE’s that they are full of baloney.  These “experts” are often very well-trained and seemingly professional, and can be very convincing to jurors.  I defended a drug DUI one time where a DRE from Okanogan County claimed he had probable cause to believe that the driver was under the influence of marijuana.  The DRE wrote in his report:

“He had raised taste buds on the back of his tongue with a green coating on his tongue.  His lips were burnt and crusty on top and bottom lips.  … His thumb and index fingers of both hands were discolored.  The discoloration on his fingers and lips was consistent with holding hot smoking pipes.”

This seemed a little fishy to me, and I eagerly awaited the toxicological report on the blood test.  The results indicated that there was absolutely no marijuana (even in trace amounts) in this driver’s blood.  Instead there was methadone found in the drivers blood, just as it was found in his car.

Is there any system of accountability for the DRE’s out there?  Is anyone keeping track of all the times the DRE’s got it wrong?   The Supreme Court in Utah is also catching on.  In a court opinion State v. Hechtle, they explained:

We are troubled by the trooper’s reliance on the appearance of Hechtle’s tongue as dispositive proof of marijuana use. Even if we were persuaded to accept the State’s position that the condition of Hechtle’s eyes and tongue are presumptively suggestive of marijuana use, nothing in the record indicates either how long these conditions are sustained or how long measurable quantities of marijuana remains in the system as required by the statute.

So, I guess in some sense, the system is working – courts are catching on.  But on the other hand, what other aspects of DRE “science” are slipping past us all?

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19 Responses to “Criminal Defense Lawyers Challenge "Green Tongue" Phenomenon in Drug DUI Cases”

  • Grace Godfrey:

    Steve I love your blog especially the photographs. But please tell me you are not using family members for these off the wall pics!!!!!

  • Cora K:

    Is this green tongue the best you could think of for the occasion of St Patick’s day?

  • Steve Graham:

    origin of photos is a trade secret ;)

  • horsechestnut:

    My tongue is so green all the cars go when I open my mouth.

  • Bea Yonsay:

    My tongue is so green that…

    …what are we talking about again?
    I am soooo baked!

  • Richard:

    Steve, I am a defense attorney in Reno and am getting a bunch of the “green tongue” cases. Do you know what study the NHTSA is relying on when publishing this in their manual?

  • Steve Graham:

    Richard, I am not sure what study NHTSA is relying on. There manual lists about 20 articles, and i only have about four of them. Its time to hit the med library before i have my next green tongue case. Post the cite online if you find it before me. Thanks for visiting my blog.

    • Dennis L. Blewiitt:

      Dr Jay Watterworth of University of Colorado, Denver has tracked the green tongue myth through the DOC You should contact him

  • Any update on the magical green tongue? I too am a defense attorney and don’t know which study NHTSA is relying on. I’m trying to get a law student to pull them for me to review.

  • Julie:

    Steve, glad to have found your blog. I’m challenging this right now in Tucson in juvenile court (comes up in a ton of our cases, but rarely is it the only factor supporting probable cause for a further search that turns up the marijuana or the pipe, and we rarely have it as a factor in a DUI drugs case to show impairment because of some local pecularites — usually it’s just one factor leading to a further search). Right now we do have one good clean case where it’s the only factor that the officer could point to that made the difference between no basis to search and basis to search. We’ll see how it goes, but if you have any updates on this it would be much appreciated as we haven’t gotten the NHTSA research together either. interestingly, our prosecutor conceded there is no scientific validity to the claim — we had demandeda Frye hearing, but i guess we’re not getting (or needing) one.

  • Steve Graham:

    Hi Julie. Thanks for coming by. I wrote this post about “green tongue” over a year ago, and I think I will update it soon. Thanks for sharing your insights from Tucson.

  • Peter:

    So, 5 years ago I was charged with possession of controlled substance for some 25+ year old coke paraphenelia and less than a gram of marijuana. During the trial the deputy prosecutor in Kootenai County blurted out to me when I was on the stand “Is it true that pot turns your tongue green?!” I had never heard of such a ridiculous thing and asked him to repeat the question and was just stunned with the whole idea of that. And then today, front page of the SR, first line of the stned driver article, green tongue! Who knew? I have never in all my years either seen or heard of that!

  • Alan R:

    Condensed marijuana smoke is not green, so smoking marijuana will not give you a green tongue.

  • Steve Graham:

    Thanks for visiting my blog guys. Peter, that SR article (from the LA Times) about marijuana DUI allegations is good, but the author fails to debunk this whole “green tongue” thing. Alan, yeah anyone who is at all familiar with marijuana smoking thinks this is ridiculous. Any green plant material that burns gives off plain gray smoke, and that is it. I don’t know why this myth is still around.

  • Steve,
    I only wish I could write as well as you! The “green tongue” reminds me of a case that I had a couple of years ago where the officer said he pulled my client over because “he looked at me strange and I knew he was hiding something.” I recently started my blog devoted 100% to marijuana in Austin and would love to place a copy or link to this post on my page. I am already placing 1st on yahoo and bing after one full week, and fairly high on google for my search terms. Please let me know if it will be allowed and if so in what format! Cliff Swayze

  • Stephanie:

    The only way to put this myth to rest is with empirical research. Any volunteers?

  • Ken:

    CHP insisted yesterday that he could smell the pot smoke coming out of my car (I’m a middle aged dad, driving around in my Suburban, wife, kids, and a yellow lab in the back!). When I told him that the last time I’d smoked was, maybe, 25 years ago, he knowingly assured me that he KNEW otherwise, because he was an EXPERT in the field! In addition to my field sobriety test (amazing… I passed! After only 25 years since my last toke!), he wanted to see my tongue. I’d never had to display my glorious tongue to an officer before… thanks to this site, now I know why. I guess it’s a good thing I hadn’t recently consumed Lime Gatorade, green Jolly Ranchers, a popsicle, Kool-Aid, or, well, anything green! My kids learned, yesterday, that in spite of what I’ve told them in the past… cops can be morons.

    Anyway… thanks for enlightening me as to WHY I had to perform a Gene Simmons!

    • Steve Graham:

      Thats a little crazy Ken. This is really becoming a big issue nationwide. Someone really needs to do a study on this.

  • Natasha:

    Hi Mr. Graham ,

    Can you tell me which case you cited that referenced State v. Baity? I’m doing legal research for a case where the arresting officer cited “green tongue” as an indicated for marijuana intoxication. Would appreciate your help!

    -Natasha

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Photo of Steve Graham Steve Graham is a criminal defense lawyer who works in eastern Washington, including Spokane, Grant, Ferry, Stevens, Lincoln, and Okanogan, and Whitman counties. Visit his website by clicking: www.grahamdefense.com
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