While marijuana laws have become lax in recent years, a "Marijuana DUI" can still get you in a lot of trouble.
criminaldefenselawyer.com by Monica Steiner, Contributing Author
The often tragic consequences and harsh legal penalties for driving under the influence of alcohol are well publicized. What many people don’t realize is that it is also illegal and punishable in all 50 states to drive under the influence of marijuana (or a combination of alcohol, marijuana, or other drugs).
Laws defining what it means to be “under the influence” of marijuana vary by state, as do applicable punishments.
Any amount = under the influence. In some states, any amount of marijuana in the driver’s system will conclusively establish that the driver was under the influence.
Above the threshold = under the influence. In other states a driver who is above a certain blood or urine concentration level will be considered under the influence.
The defendant’s behavior or actions= under the influence. A minority of states require the prosecutor to prove that the driver was under the influence, by pointing to his behavior or driving, regardless of the amount of marijuana in the driver’s system.
States also differ in their definitions of "driving." For example, in many states, a DUI charge can result from merely sitting in a stationary car while under the influence. Whether this definition of “driving” applies to you depends on the law of the state where you live, and is discussed further below.
What it Means to be "Under the Influence"
In most states, being “under the influence” means that the driver is incapable of driving safely due to the effects of drug or alcohol use.
As you are probably aware, when it comes to alcohol, a blood alcohol level of 0.08 percent of the driver's blood, by volume, will conclusively establish that the driver is under the influence (if the level is less, the prosecutor can still point to the driver's actions to prove that he was under the influence). In some states, the blood alcohol level threshold is even lower if the driver is a minor.
When marijuana is involved, however, states have different approaches to establishing that the driver was under the influence, as shown below.
Per se laws
In states with so-called “per se” DUI laws, any amount of marijuana in the driver’s system at the time of the offense will conclusively establish impairment. In these states, a prosecutor will not need to present any further evidence (such as behavior consistent with being under the influence or unsafe driving) in order to establish that the driver was under the influence.
State per se laws often include marijuana metabolites—compounds left over when the body metabolizes (or processes) marijuana—which can remain in a person’s body for days, weeks, or longer after marijuana use. While metabolites indicate that the person ingested marijuana at some point in the past, they do not indicate how long ago, or necessarily point to current impairment. Even so, state per se laws that include metabolites accept their presence as conclusive evidence of impairment for the purposes of a DUI charge.
Blood or urine marijuana concentration levels
As they do with blood alcohol thresholds, some states consider a level of marijuana (or marijuana metabolites) in the driver’s blood or urine—usually in nanograms/ liter—as conclusive proof of impairment. As with per se laws, the prosecutor will not need to prove that the driver’s senses were impaired—no need for field sobriety test results, or testimony about the driver’s speech, balance, or poor driving.
In these states, having a concentration level that’s lower than the threshold does not necessarily mean that the driver was not under the influence, however. The prosecutor may still point to the driver’s actions and behavior (such as his driving) to show that the driver was under the influence.
The driver’s behavior or driving
In the minority of states, the prosecutor must always establish that the driver was behaving in a way that showed that he was under the influence of marijuana at the time of the arrest—regardless of (even relatively high) marijuana blood or urine concentration levels. Prosecutors can do this by showing that the driver had impaired balance or speech, or that he was driving erratically—even that he smelled of marijuana.
People are sometimes surprised to learn that the prosecution need not show actual unsafe driving to prove that the driver was under the influence. Merely being under the influence and driving will suffice. For example, suppose you are involved in an accident that you did not cause—your driving was just fine. But the police officer who comes to the accident scene smells marijuana in your car, observes your reddened eyes and tell-tale behavior, and sees half-smoked joints in the ash tray. This may be enough evidence to charge you with driving while under the influence, even though your driving was not unsafe.
Driving as a Medical Marijuana Patient
Eighteen states have made it legal to use marijuana for medicinal purposes, as long as the patient follows the law with respect to amounts, registration, and so on. But no state has gone so far as to say it’s okay to drive after using medical marijuana, even when the patient has scrupulously followed the rules. This can be especially problematic for medical marijuana patients in states that employ per se laws, because as explained, metabolites may remain in the body for some time after use, arguably with no effect on the person's driving.
Medical marijuana patients should know how their state approaches the issue of being “under the influence,” as explained above. For more information on this topic, see Medical Marijuana and Driving.
What Constitutes "Driving"?
Most state DUI statutes consider someone to be a driver within the meaning of the DUI law when he is “in actual physical control” of the vehicle at the time of arrest. This definition is broader than our common idea of “driving” or “operating” a vehicle. The policy goal behind this broad-reaching definition is to keep people from doing a wide range of vehicle-related activities while under the influence, thus increasing safety for other motorists, pedestrians, and property along roadways.
Because of this expansive definition, most state statutes do not limit DUI charges to people who are operating moving vehicles. Being “in actual physical control” of the vehicle can include being in control of a parked car, if the judge believes that the defendant intended to begin driving, or even that the defendant had already driven the vehicle before being found by the arresting officer.
If a DUI can include more than simply driving, what constitutes “actual physical control” of a vehicle? Judges tend to consider a combination of factors, including whether:
the vehicle was on or off
the vehicle was moving or stationary
the vehicle was operable
the keys were in or out of the ignition (and whether the defendant even had access to the keys)
the driver was awake or asleep (was the defendant perhaps “sleeping it off” in a parked vehicle?)
there was any gas in the tank
the vehicle’s gears were engaged, and
the defendant was in the driver’s seat.
Whether you were in “actual physical control” comes down to the judge’s consideration of the specific facts surrounding your case.
Marijuana DUI Penalties
The most common punishments for DUI offenses are a fine, jail (or prison) time, or both. Many states will also impose some length of license suspension or require the use of an ignition interlock device, so that the defendant’s vehicle will not start without a clean breathalyzer sample. Specific penalties for DUI convictions vary by state, though all states impose some combination of the following to punish DUI convictions:
jail (or prison) time
victim impact program participation
home confinement (also known as house arrest)
ignition interlock device use
vehicle impoundment or forfeiture, and
drug and alcohol abuse programs.
Within each state, the severity of the applicable penalties in each case usually depends on whether the offense was a first or subsequent violation, and aggravating factors may increase applicable penalties (see below).
The following circumstances will increase the penalties that would normally apply to a DUI conviction. These include (but are not limited to):
second and subsequent offenses
a minor in the vehicle at time of offense (sometimes referred to as “child endangerment”)
a minor as the defendant
DUI while driving on a suspended license
DUI while driving a school bus
causing a traffic accident, property damage, bodily injury, or death, and
driving with particularly elevated alcohol or drug content levels
Sentence ranges and mandatory minimum sentences
Although many state statutes list maximum fines, jail time, and license suspension periods, unless the law requires minimum fines, jail time, and suspension, the judge usually has discretion to sentence for periods up to the various maximums. This means that a defendant can theoretically end up with no, or very low, jail time and penalties.
Defendants who have prior DUI convictions probably can’t count on a mild sentence due to the absence of a mandatory minimum sentence in the statute, however. In all states, penalties increase for second and subsequent offenses, and in most states, that means mandatory minimum penalties for these subsequent violations. However, often there’s a “wash out” provision—a rule that effectively makes a prior DUI of a certain age go away for purposes of enhancing subsequent sentences. For example, a mandatory minimum may apply to a current conviction only if the prior conviction was incurred less than five, seven, or ten years ago. When a prior has washed out, the subsequent offense is treated as a first offense for punishment purposes.
PHOENIX — People with marijuana in their system can escape driving-under-the-influence convictions if they can show they weren’t “high” enough to be impaired, the Arizona Supreme Court ruled Friday.
The justices rejected a claim by two individuals that the fact they had state-issued cards allowing them to ingest the drug automatically means they can never be charged with driving while impaired. Chief Justice Scott Bales, writing for the unanimous court, said nothing in the 2010 voter-approved law allowing the medical use of marijuana provides such immunity.
But Bales said the presence of marijuana is not proof that someone is actually impaired.
Friday’s ruling creates what is called an “affirmative defense” for those charged with driving with drugs in their system.
In essence, they can still be charged with violating the law. And all prosecutors have to prove is that they did, in fact, test positive for marijuana or one of its metabolites, the chemicals caused when the drug breaks down in the body.
But Bales said defendants can escape conviction if they can prove to a court “that the concentration of marijuana or its impairing metabolite in their bodies is insufficient to cause impairment.”
The decision is a mixed bag for prosecutors.
On one hand, they praised the fact the high court did not say medical marijuana users can drive without fear of being stopped or prosecuted.
“This is a very welcome ruling in today’s culture, where the small minority of individuals who use marijuana seek to reorganize Arizona’s laws to protect their use to the detriment of the public’s safety,” said Yavapai County Attorney Sheila Polk.
But prosecutors were upset the justices effectively voided the state law that makes it a crime for individuals to operate a vehicle “while there is any drug defined in (state law) or its metabolite in the person’s body.”
Maricopa County Attorney Bill Montgomery said that law is plain on its surface: If a motorist tests positive for marijuana, he or she is guilty of driving while impaired. He said that differs from other laws wherein prosecutors have to specifically prove someone was impaired.
Bales conceded that point. And he said there apparently was a purpose behind that statute.
“The Legislature, in seeking to combat the serious problem of impaired driving, recognized that for certain drugs it may be difficult to identify concentrations that definitely establish whether a defendant is impaired,” Bales wrote.
But he said there’s another law at play: the one voters approved in 2010 allowing those with certain medical conditions to legally possess and use marijuana. And that law spells out that a patient “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”
Bales said those two statutes, read together, give medical marijuana patients the chance to argue that they cannot be convicted because they were not impaired.
Montgomery said there’s one big practical problem with that: There are no scientific studies that show at what level of marijuana in the blood someone becomes impaired.
That’s far different than laws dealing with drunken driving. Lawmakers have enacted laws saying that someone with a blood-alcohol concentration of 0.08 or more is presumed to be driving while intoxicated.
What that potentially leaves, said Montgomery, is having defendants testify that they were not impaired.
For example, he said an individual could say he uses marijuana for back pains but still had a spasm, which is what resulted in the car jerking, and which is further why the officer pulled the person over in the first place.
“I’m going to declare from my personal testimony, ‘I wasn’t impaired, I drive like this all the time,’” Montgomery said of how the testimony might go.
He pointed out that Friday’s ruling says that question of impairment is determined by the “preponderance of the evidence,” meaning whether something is more likely impaired than not. Montgomery said that could mean a defendant would be acquitted unless a prosecutor could find some way — he’s not sure how — to rebut the driver’s claim that he or she was not impaired.
Friday’s ruling extends even further the legal protections the state Supreme Court provided last year for marijuana users charged with DUI.
Polk said Friday’s ruling will have even more far-reaching implications if voters approve the initiative now being proposed for the 2016 ballot to allow the recreational use of marijuana.
VIA The Arizona Star
Phew, many of you are saying.
A bill that would have made the presence of just a little itty bit of weed in your bloodstream, even if you toked up a few days ago, worth a DUI prosecution was killed in the California legislature recently. The legislation was nixed by the Assembly Public Safety Committee.
AB 2500 by Assemblyman Jim Frazier would have imposed a 2 nanograms per milliliter THC blood limit on the state's drivers. Medical marijuana defenders were outraged because THC metabolites can stay in your blood days after the high has worn off:
They argued the law would, de facto, make regular medical marijuana users DUI drivers, even if they weren't actually impaired behind the wheel.
Frazier is a Democrat from Oakley, California who changed the bill, likely after outrage followed the original version that would have triggered DUI prosecutions for drivers caught with any discernible amount of pot in their systems.
The pro-marijuana group NORML:
... The bill would make marijuana users liable for DUI regardless of whether they were actually impaired at the time.
The revised proposal still would have made it illegal for drivers to have low amounts of any federally illicit narcotic - cocaine, meth, heroin - in their blood streams.
And it was still stricter than the 5 nanograms per milliliter blood-THC standard used in Colorado, a limit also being buzzed about by some prosecutors right here in California.
Local district attorneys and city attorneys say stoned driving is on the increase because of the prevalence of medical marijuana retailers in California. They want new tools for prosecuting the crime.
Marijuana DUIs are harder to prove than drunk driving, though, because there's no scientific standard that's the equivalent of California's .08 blood-alcohol limit.
NORML questions why a stoned driving law would be needed at all. The group claims:
... Even while marijuana usage has been increasing over the past decade, accident rates and DUI arrests in California have been declining.
Via LA Weekly
Pot Smoking Could Affect Driving For Weeks, Researchers Suggest
Does marijuana affect driving safety, and if so, how dangerous are pot-smoking drivers?
There’s definitely evidence to suggest recent use might, even at somewhat low levels, increase the chances of an accident. But with recreational use now legal in Colorado and Washington, and medical use now allowed in a number of other states, what are ‘safe’ driving levels of THC (the active ingredient), and for how long after smoking should one be considered impaired?
According to new research appearing in Clinical Chemistry (full study), the journal of the American Association of Clinical Chemistry (AACC), cannabis can be detected in the blood, at a level that might affect driving, for weeks after the last 'intake.'
“Our results demonstrate, for the first time as far as we are aware, that cannabinoids can be detected in blood of chronic daily cannabis smokers during a month of sustained abstinence,” said the paper’s conclusion statement. “This is consistent with the time course of persisting neurocognitive impairment reported in recent studies.”
This underlines a point, that while marijuana legalization has been moving rapidly, there’s been very little research done about the effects of daily smoking on driving safety--or on ways that law enforcement might expedite testing.
How much daily smoking can go with daily driving, if at all?
Part of the problem is that with regular consumption, the active ingredient in cannabis (THC), is present in the blood in variable concentrations that don’t necessarily decrease predictably like blood-alcohol.
Washington state set an official threshold of 5 nanograms of THC per millimeter of blood, although some have claimed that amount to be arbitrary. And 14 other states have set limits on plasma or serum THC concentration as indicating driving impairment.
Meanwhile, a recent informal (yet very amusing) test of pot-smoking drivers done by CNN found several subjects with levels well above those limits to be, anecdotally, more functional than drunk drivers would be at several times the legal limit, for sure.
According to a 2007 National Roadside Survey (NRS), which investigated the prevalence of drug-involved driving based on a real-world sampling, more drivers tested positive for drugs than alcohol—although that included illegal drugs as well as legal drugs that might influence driving safety, such as prescription painkillers, antidepressants, sleep aids, and ADHD medications.
The new research, based on a method in which THC-positive subjects were studied with daily blood samples for 30 days, finds that throughout a month of abstinence, cannabinoids can be detected in the blood of so-called 'chronic daily smokers.’
Yes, surprisingly, not even this had been done before, scientifically.
“Acute impairment is well documented for hours after cannabis intake, whereas the persistence of chronic impairment is less clear,” the authors state, also noting that cannabis is second only to alcohol for impaired driving and motor-vehicle accidents.
Safer relative to drunk, perhaps, but riskier than sober
To help keep it all in perspective, drunk drivers are ten times more likely to be the cause of fatal car accidents than stoned drivers. Yet results from a 2005 study in the journal Addiction found that regular cannabis smokers had about ten times the level of car-crash injuries when compared with those who abstained or used infrequently.
What this calls for—at least as a release accompanying the new results suggests—is a unified 'per se' drugged driving policy—meaning that any detectable amount of a controlled substance could potentially be grounds for finding the driver guilty of impaired driving.
Do you think that's fair—or for legal ‘users’ do you think it's worth sticking to a legal limit for impairment? Let us know in your comments below.
Test confirms RI lawmaker wasn't drunk at DUI stop
Boo this man. Don't drink and drive. Set an example LAWDUDE! -UA
May 19, 2011 boston.com
EAST HAVEN, Conn.—A laboratory test confirms that Rhode Island state Rep. Robert Watson's blood alcohol concentration was below Connecticut's legal limit for driving when he was charged with driving under the influence and possession of marijuana.
East Haven police say that Watson smelled of alcohol and marijuana when they stopped him on April 22. A breath test at the time put his blood alcohol concentration at .05 percent. The New Haven Register reports that the newer results, from a urine test, show it was .07 percent. Connecticut's legal limit is .08 percent.
Watson, of East Greenwich, R.I., has said he consumed several drinks but wasn't drunk. He said he uses marijuana to treat recurring pain from pancreatitis, but hadn't used any the day of his arrest.
Medicating while you drive is unsafe and not a very good idea. -UA (thats for you, Cat!)
SJC: Odor of marijuana not enough to order suspect out of car
By Martin Finucane, Globe Staff
The odor of burnt marijuana is no longer enough for police officers to order a person from their car, now that possession of less than an ounce of marijuana has been decriminalized in Massachusetts, the state's highest court ruled today.
"Without at least some other additional fact to bolster a reasonable suspicion of criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order," the court ruled in a decision written by Chief Justice Roderick Ireland.
The court said the people's intent in passing a 2008 ballot question decriminalizing the possession of small amounts of marijuana was "clear: possession of one ounce or less of marijuana should not be considered a serious infraction worthy of criminal sanction."
"Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language of the statute," the court said.
Establish legal limit for THC-blood level
By The Daily Targum
Published: Monday, February 21, 2011
If people are allowed to drive after drinking — provided their blood-alcohol level is under the legal limit — then why shouldn't people be allowed to drive after smoking marijuana? That seems to be the question raised by a bill in the Colorado state legislature, which would set a legal limit of under five nanograms per milimeter of THC in a person's bloodstream. As long as a driver's THC-blood level is under five nanograms, he would legally be allowed to drive. While some are in support of the current zero-tolerance policy, we agree with the idea of establishing a legal limit. If used responsibly, marijuana does not significantly impair a person's ability to drive. A 2004 National Highway Traffic Safety Administration study shows that marijuana, if used responsibly, does not significantly impair a person's ability to drive.
Placing a legal limit on THC-blood level may help remove the stigma some Americans have about pot. By treating marijuana in a similar manner to the way alcohol is treated, this bill may help to normalize pot usage to the extent that people may being considering the actual effects of marijuana, rather than dismissing it as illegal and therefore, highly dangerous. Like any mind-altering substance, marijuana can be dangerous — but if alcohol is legal, then there is no reason marijuana should not be as well. As long as pot is regulated in the same way alcohol is regulated, responsible adults should be able to enjoy it. This bill has the potential to expose this truth to people who have never taken the time to really consider the facts. This bill also opens the door for medical marijuana users to drive after using what is, in this case, medication. It is not fair to prevent them from driving because of outdated laws.
The Cannabis Therapy Institute has objected to the bill, stating that "chronic cannabis users, such as medical-marijuana patients, normally average a much higher THC concentration in their bloodstream than 5 ng/mL … and this does not necessarily cause impairment." That may be the case, but the Cannabis Therapy Institute is approaching the bill from the wrong angle. Rather than complain that cannabis users can often drive with higher THC levels in their blood, they need to recognize that — even though this bill is not perfect — it is a step in the right direction. This is the first time a state has decided to tackle the issue of driving high, so it is expected the bill will have some flaws. But what is important here is that Colorado has recognized that regulation is far more productive than outright condemnation.