Driving under the influence of marijuana is a crime in every state in the U.S., even those in which marijuana is legal. Some states allow people to possess a small amount of marijuana for medical purposes. However, driving while under the influence of marijuana is still illegal under DUI laws.
Driving under the influence of alcohol is generally prohibited, even though it is legal to possess and consume alcohol. In the same way, driving under the influence of marijuana is prohibited, even if state laws allow medical marijuana possession or if possession is entirely legal. The use of marijuana in such states is generally allowed only in one’s home, not while driving or in public areas.
For example, in Colorado marijuana is legal for adults, but ingesting marijuana before driving can lead to an arrest for driving under the influence (DUI). Consider the following points:
- As with alcohol, there is an established blood level that constitutes impairment for the purpose of driving under the influence of marijuana in Colorado:
- Colorado law states that drivers with 5 nanograms of delta-9 tetrahydrocannabinol (THC) per milliliter of whole blood can be prosecuted for DUI;
- Even if a person has used marijuana for medical purposes, officers can arrest the person for impaired driving. In other words, even if a person has ingested marijuana for medical treatment of some condition, the person cannot drive under the influence of the marijuana;
- Open containers of marijuana are not allowed in motor vehicles in Colorado:
- Neither drivers or passengers are allowed to open marijuana packaging and use the product while in a vehicle, even if they are not moving. So a person cannot sit in their parked vehicle and consume marijuana;
- A person can be charged with a traffic offense if the marijuana product seal has been broken, some of the product has been consumed and there is evidence that it was used in the car.
When in Colorado, keep the following points in mind:
- It is against the law to leave the state with any marijuana product;
- A person cannot bring marijuana to the Denver International Airport or any other airport in the state;
- On federal land and in federal parks, even if the land is in Colorado, marijuana is not legal. It cannot be used on any land owned by the federal government.
Marijuana is also legal in California, but there is no legal limit for driving under the influence of marijuana in California. Driving with any amount of THC in one’s blood is illegal in California.
Because there is no standard legal limit THC blood levels, police have a great deal of discretion as to when they can legally make arrests for drugged driving. Law enforcement officers can arrest drivers they suspect of being under the influence of marijuana. Typically, a drug recognition expert (DRE) is called in to conduct an investigation. Drug recognition experts are police officers who have been specially trained to recognize the signs of drug impairment. Their investigation involves the following methods:
- They may conduct field sobriety tests;
- They take the motorist’s vital signs;
- They can administer a roadside breathalyzer test (PAS test). A normal result might indicate the suspect has ingested drugs rather than alcohol because breath tests detect alcohol ingestion and not drug use;
- They may note whether the driver exhibits objective symptoms of intoxication, such as “glazed” eyes;
- They would interview the driver.
Law enforcement can also require the driver to provide a urine or blood sample for chemical testing following a DUI arrest. Saliva tests are not used, because they cannot detect drug use.
What Are the Penalties for a DUI Charge?
The penalty for driving under the influence of marijuana depends on the state in which the crime is committed. A first offense is usually charged as a misdemeanor and comes with misdemeanor penalties, including a short jail sentence of a year or less and/or a fine in some amount. This includes driving under the influence of medical marijuana and other prescription medications.
Remember that just because a person’s mairjuana ingestion is medically justified, a person cannot drive under the influence of marijuana. The same is true for other prescription medications that can impair a person’s ability to drive, e.g. prescription narcotics.
In some cases, driving under the influence of marijuana can result in felony charges. For instance, this can happen if the DUI was a second or third offense, or if the driver caused an accident that resulted in injury to another person or the death of another person.
For example, in California, where marijuana is legal, the penalties for a marijuana-related DUI are the same as those for driving under the influence of alcohol. A first offense is usually charged as a misdemeanor unless a serious accident is involved. With additional convictions, the penalties become more severe. Felony punishments usually apply if the person driving under the influence of marijuana causes an accident that results in injury or death to a third party.
The punishment for a first-time DUI in California is as follows:
- A term of imprisonment in the county jail for up to 6 months;
- A term of probation for 3 to 5 years;
- Suspension of the driver’s license;
- DUI school, which would be drug and alcohol education,
- A possible term of community service, and
- Fines of from $390 to $1000 plus a penalty assessment.
Note that most courts impose little or no actual jail time for the first offense if there are no aggravating circumstances. As long as the defendant completes all the terms of the probationary sentence, the judge usually does not sentence the defendant to time in jail.
Subsequent offenses are punished more severely. A fourth-time offense is a wobbler, which means the defendant could be convicted of either a felony or a misdemeanor.
In Colorado a person convicted of driving under the influence of marijuana faces the same basic penalties as a person convicted of driving under the influence of alcohol.
The two offenses are dealt with in the same state law. The only significant difference between driving under the influence of marijuana and driving under the influence of alcohol is as follows:
- If a person is arrested for DUI or DWAI based on marijuana use, the officer can require the person to take a DUI blood test (or a urine test) instead of a DUI breath test, which is the test for driving under the influence of alcohol only.
But even this amount of THC in the blood does not establish guilt conclusively. Lawyers can challenge it in court. To prove a person guilty of driving under the influence of marijuana, the prosecutor must show that the person was actually too high to drive safely. Such evidence might include such conduct as the following:
- The driver violated Colorado traffic laws;
- The driver was weaving within their lane of travel;
- The driver drove too fast or too slow;
- The driver shows physical indications of being intoxicated with marijuana;
- The officer can smell marijuana in the car;
- There is marijuana paraphernalia in the vehicle, such as cigarette rolling papers, a bong, a joint clip, and the like;
- Marijuana was found in the vehicle.
The penalties for a first offense of driving while intoxicated with marijuana in Colorado are as follows:
- A term of from 2 to 180 days in jail;
- Payment of a fine of $200 to $500;
- Provision of 24 to 48 hours of community service;
- 8 DMV points on the person’s DMV driving record.
Can I Transport Marijuana in My Car?
This depends on the law in the state in which a person transports the marijuana. In states where medical marijuana possession is legal, it is generally legal for a person to transport a small amount of marijuana in their car for personal use in an unopened container of some kind. If large amounts are found, it may lead law enforcement to believe that the person intends to sell the marijuana., which may still be a criminal offense.
Again, using marijuana while driving is a crime. And, as noted above, having marijuana in some kind of packaging that is open in a motor vehicle is illegal in Colorado where marijuana use is legal for adults.
Also, it is important to note that the law in some states only permits the use of medical marijuana. So, a person can still face federal charges, even if the state allows medical marijuana use. Transporting marijuana in a motor vehicle is ill-advised and could lead to federal criminal charges.
Do I Need a Lawyer for Help with DUI Charges?
As can be seen from the information above, the laws regarding driving under the influence can be complicated and are different in different states. If you have been charged with driving under the influence of marijuana, you may be at risk of having your driver’s license suspended in addition to other penalties.
So, you should consult a DUI/DWI lawyer. Your attorney can provide you with expert legal advice and can represent you in negotiations with the prosecutor or at trial if this should become necessary.
