What Happens If I’m Charged With a Marijuana DUI?

Ryan Allway

November 8th, 2017


Since U.S. states began legalizing medical and recreational marijuana use, the subject of marijuana DUI has become an impassioned topic of conversation.

Law enforcement agencies, legal experts, and cannabis users alike continue to debate the dangers of driving under the influence of drugs (DUID) and the challenges of establishing impairment levels.

Because of the challenges involved with proving cannabis-related impairment, drivers charged with marijuana DUI must consider several complex legal issues.

How does a marijuana DUI differ from an alcohol-related arrest?

Decades of medical research has established a clear correlation between a driver’s level of impairment and breath or blood alcohol content (BAC). Based on that knowledge, states have adopted legal BAC limits and effective ways for testing drivers suspected of impairment. Determining marijuana’s effect on the ability to drive safely, however, remains somewhat controversial. Reliable methods for testing drivers suspected of DUID poses another challenge.

In all states except Utah (Utah is lower), a BAC of 0.08 or above is the “per se” limit for driving under the influence of alcohol. In other words, a chemical test result is, on its own, sufficient legal evidence of a driver’s impairment, regardless of how sober the individual may seem.

Per se limits on driving under the influence of marijuana are not as clear-cut.

While there is a federal BAC limit, there is no standard per se marijuana limit. Instead, many states have adopted laws establishing limits for drugged driving.

Testing for drugged driving presents a challenge.

Detecting cannabis in the body requires testing for specific aspects of the drug’s metabolites. Understanding cannabis metabolites requires a brief review of organic chemistry and biological systems.

Cannabis contains hundreds of chemicals, including 61 cannabinoids. Among those, only five cannabinoids produce detectable psychoactive effects. Two of those, known as Delta-9-tetrahydrocannabinol (THC) and Delta-8-THC, are the primary cause of marijuana’s behavioral effects.

When Delta-9-THC breaks down in the human body, it converts to an inactive metabolite known as carboxy-THC, which is stored in fat cells. Delta-9-THC levels decline quickly after cannabis use; however, inactive carboxy-THC metabolites can remain in the body for days or weeks. Today, we have the ability to test for carboxy-THC in urine. Blood testing can identify both the inactive carboxy-THC metabolite and the active Delta-9-THC chemical.

Theoretically, a driver who tests at or above the legal limit for Delta-9-THC would qualify as legally impaired, under per se drugged driving standards. But, because THC stays in the body longer than alcohol, sometimes days or week, the presence of THC does not always correlate with impairment.

In Washington, for example, the per se limit for drugged driving is five nanograms of Delta-9-THC per milliliter of blood. Several states have adopted a similar standard for marijuana DUI laws. Other states have adopted a zero-tolerance policy for drugged driving.

This means that a driver could test positive for more than 5/ng of THC, and be arrested for marijuana DUI, even if he had not smoked in days.

The Questionable Reliability of Field Sobriety Testing for Marijuana DUI

The effects-based standard for marijuana DUI requires that police offers administer field sobriety tests to drivers they believe may be impaired, to determine whether the driver is capable of driving safety.

If officers suspect a driver may be impaired — by drugs or alcohol — they typically employ the same standardized field sobriety testing methods, as established by the National Highway Traffic Safety Administration (NHTSA). Unfortunately, these tests pose several legal challenges when used to prove a marijuana DUI.

Field sobriety testing procedures, including the NHTSA tests, are designed to test impairment specifically related to alcohol, not marijuana or other drugs. In addition, officers can only provide subjective interpretation of these tests. Despite its subjective nature, in most states, field sobriety testing is the gateway standard for determining whether to charge a driver with marijuana DUI.

Law enforcement is adopting new marijuana DUI testing procedures.

To address the ongoing challenge of testing reliably for marijuana DUI, German medical device manufacturer Lübeck has released a new electronic testing device. The Dräger DrugTest 5000 uses a cheek swab to test for the presence of active Delta-9-THC rather than its inactive counterpart.

What should drivers do if stopped for a marijuana DUI?

While drivers have a legal obligation to submit to a breathalyzer or blood test when ordered by an officer, drivers can turn down saliva testing, such as that used by the Dräger device. If the test is voluntary, drivers can — and probably should — turn it down.

If a traffic stop ultimately results in DUID charges, a marijuana DUI attorney can assist in determining the legality of the arrest and identifying effective legal defense strategies.

Ryan Allway

About Ryan Allway

Mr. Allway has over a decade of experience in the financial markets as both a private investor and financial journalist. He has been actively involved in the cannabis industry since its inception, covering public and private companies.

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