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Ask the Festival Lawyer: Will the Feds Be Drug Testing Drivers At Burning Man?

Photo by: Galen Oakes
by The Festival Lawyer | @festivallawyer Sat July 01, 2017 | 06:32 PM

You may have seen a recent viral article with the headline, “The Feds Will Be Drug Testing Drivers at Burning Man .” The article begins with the following scary paragraph:

"Cannabis and a variety of other controlled substances will be the targets of law enforcement officers empowered by the Bureau of Land Management to test vehicle operators traveling in and out of Burning Man’s desert playa..."

My immediate reaction was, “This sounds like clickbait legal news.” After a little checking, my opinion is, "It’s probably clickbait legal news.” The concern stems from the announcement in the federal register that drug DUIs on the Playa will be prosecuted under some ludicrously low levels. For example, a two-nanogram-per-milliliter marijuana blood level would qualify for a “Playa DUI.”

That’s basically a puff on a vape pen or one espresso bean edible. Given how long marijuana can stay in your system, this caused a lot of justifiable concern on social media. The important thing to keep in mind is that this same language, word for word, was in last year’s Black Rock City permit. In fact, it looks like it has been there since at least 2013, this doesn’t appear to be some new policy by the Feds so much as the standard language put in the permit every year.

The question remains: Is this threat bogus? The answer is, unfortunately, “Maybe yes, maybe no.”

Burning Man 2014 Art Gimbel 22

Photo by: Art Gimbel

The problem is that it is extraordinarily difficult to say how aggressive law enforcement will be at a particular festival from year to year based on pronouncements before the event. A few years back, Coffee County elected a new DA who specifically stated he wanted to be more aggressive as to how law enforcement handled cases at Bonnaroo . There was a lot of justifiable anxiety about how that might play out at the event. But when the festival arrived that year there really was very little difference from how things had been handled in prior years. The DA even went to the festival and had a good time.

It’s hard for me to imagine the Bureau of Land Management having the resources to actually arrest everyone who violates this statute. On the other hand, Jeff Sessions and the Feds seem like they would be more than happy to mess with the biggest gathering of liberals, free thinkers, hippies, partiers and drug psychonauts on the planet. And with this being on federal property, it’s extremely hard to know how this will play out. As a practical matter, therefore, it makes sense to know your rights.

If you do get stopped by law enforcement, the most important thing you can do for yourself is figure out if this is a “consensual encounter” (one in which you are free to go) or you in fact being “detained” by the police and suspected of a crime.

The best way to do that is by asking in a calm and polite manner “AM I BEING DETAINED?” If you are told you are free to go, leave. If not, calmly keep asking “Am I free to leave?” until you get a yes. As soon as you are told that you are free to go, take your art car and drive off. If you are told you are not free to go, realize that you are now a suspect in a crime and you need to invoke your other Constitutional rights. That means invoking your right to remain silent, asking for a lawyer and not agreeing to be searched.

But what about these mandated blood tests? The permit states that there must be “probable cause” for a DUI before the test has to be taken. Probable cause is the same standard for an arrest. That’s a much higher standard than that of “reasonable suspicion” which is the standard for stopping a car and investigating its occupants.

Also, the U.S. Supreme Court has held (in a case called Missouri v. McNeely) that you must get a warrant before taking blood in a DUI case. The best course of action, therefore, is to refuse all testing unless you are told directly by law enforcement that you MUST comply. For example, in California, any chemical tests that police ask for before an arrest is made are optional. However, once an arrest for DUI has been made you must submit to a blood or breath test or your license will be suspended for a year.

If an officer said I had to give a blood sample for a DUI, I would say something like: “Officer I am not giving consent to have my blood taken without a warrant. However, I am not refusing the test if you say it is mandatory.”

That’s a mouthful if you are not sober. But the point is to not consent to anything. Instead, try to make the officer clarify if this test is mandatory. If it is, you shouldn't resist it or refuse to take it or fight the cops. Fight it later in court instead.

If you want more information or have other questions, my co-host Jason and I talked about your rights in car stops in a recent, “Ask the Festival Lawyer" podcast. You can listen to it here.

Got a question for the podcast or an idea for an episode? You can email askthefestivallawyer@fest300.com.

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Disclaimer: Although the Festival Lawyer is a lawyer he is not YOUR lawyer. The ATFL column gives general information about legal topics, NOT legal advice. The law is complex, varies a great deal from state to state, and each factual situation is different. Also, “The Festival Lawyer” is a fictional character. Think of the Festival Lawyer more like a legal spirit guide, encouraging you to educate and inform yourself.