As eight states have now legalized the recreational use of marijuana, many people are uncertain about the legal elephant in the room: driving under the influence of marijuana. Law enforcement agencies are concerned about drug-related vehicular accidents and others are concerned about how DUIs should be measured, enforced, and effect citizens partaking in the newly decriminalized activity.
While some view “driving while high” as less dangerous than driving while drunk, the facts remain that it’s illegal in every state to do so. You can get charged with a DUI/DWI/OUI (depending on your state) for driving under the influence of marijuana just as you can for driving while intoxicated by alcohol.
However, there are a few key differences in how intoxication from both substances is determined. DUI limits and penalties will differ from state to state. In general, there are no distinct differences between drug and alcohol-related DUI penalties.
How marijuana intoxication is measured
In an alcohol-related DUI, blood-alcohol content (BAC) is used to determine how drunk a driver is from alcohol. A driver over age 21 who registers at a BAC of 0.08% or higher is considered impaired in every state. In the case of marijuana-related charges, not every state has set a legal limit litmus test for determining marijuana intoxication.
States that have legal intoxication limits utilize chemical testing to determine a driver’s delta-9 THC content in their bloodstream. THC is a psychoactive chemical absorbed into the body from marijuana. A person’s blood-THC content is measured in nanograms (ng) of THC per milliliter of blood.
In the United States, law enforcement uses blood and urine chemical testing to measure drivers’ blood-THC content. While you are free to decline chemical testing, every state has implied consent laws that penalize drivers who decline chemical testing. Refusal penalties are added along with any other penalties you may face from a DUI. Penalties for refusing may include fines, driver’s license suspension or revocation, insurance surcharges, and jail time.
State limits for blood-THC content
Five states (MT, NV, OH, PA, and WA) enforce per se laws. Per se laws automatically charge a DUI to a driver whose THC-blood content level exceeds a state minimum regardless of visible or actual impairment.
Colorado has a permissible inference per se law, meaning that if the driver meets or exceeds the legal THC limit, it’s inferred that he/she was impaired while driving. The permissible inference part of Colorado’s law operates on the assumption that a driver was illegally impaired based on their THC-blood content level. Other states with per se laws only charge a driver for exceeding a legal limit without considering their impairment.
Some Colorado drivers are able to have their DUI penalties reduced or entirely dismissed if they’re able to prove that they weren’t impaired despite being over the legal limit.
Here are the minimum intoxication limits shared among the per se states:
- 5 ng THC: CO, MT, WA
- 2 ng THC: NV, OH
- 1 ng THC: PA
Twelve states impose zero-tolerance laws on blood-THC content levels, meaning that any amount of THC in a driver’s blood system is grounds for a DUI. Zero-tolerance states include AZ, DE, GA, IL, IN, IA, MI, OK, RI, SD, UT, and WI.
All other states without zero tolerance or per se laws don’t use a driver’s blood-THC content to determine intoxication. Instead, prosecutors in those states must use other means of proving that a driver was impaired by marijuana, such as saliva, breathalyzer, or hair follicle tests.
Unlike alcohol which can remain in your blood system for several hours, THC can remain in your system from 20 hours up to 90 days depending on how regularly you partake. Studies suggest that THC levels may not be correlated with actual impairment. As a result, enforcement on THC levels alone is sometimes questioned.
What happens at a traffic stop if I’m high or possessing?
A law enforcement officer can pull you over if you appear visibly impaired while driving. Once the officer pulls you over, he/she can conduct roadside sobriety tests similar to those conducted for drunk drivers to determine the severity of your impairment. If an officer determines that you were high while driving and thus impaired, you can be charged with a DUI.
An officer may also request you to visit the local police station to undergo chemical testing. If the chemical test comes back positive or above the legal THC limit in your state, you can be charged with a DUI.
If an officer finds marijuana in your possession or in your vehicle, you may be liable for drug possession charges if you’re driving high depending on your state’s laws. Even though eight states (AK, CA, CO, ME, MA, NV, OR, and WA) have decriminalized the recreational possession and use of marijuana, it is still illegal to possess amounts exceeding the states’ legal limits.
If you’re caught possessing marijuana over the legal limit, you can face a drug possession charge in addition to any other charges like a DUI. You may still be liable for a drug possession charge if the marijuana belongs to your passenger and you did not partake.
Tips for staying safe and legal
The obvious solution is to not drive while high.
Everyone has different tolerance levels when it comes to getting high. It might take more to get high for some people, meaning that they’ll have more THC in their blood. Regardless, it’s better to stay on the safe side and wait to drive until your actual impairment has passed.
The marijuana legal landscape is still rough and unforgiving in many states. An experienced DUI lawyer can review your case and help represent you in court. An attorney will know the state drug and traffic laws that are pertinent to your case.