Can you get a marijuana DUI?
With the rapid growth of marijuana legalization in the US, Canada, Mexico and elsewhere, more and more people are using the drug. With that increase in use, the incidence of cannabis impaired driving has also radically increased. For those who aren’t familiar with the law, you may be wondering: can you get a a DUI for driving while high on marijuana?
The answer is yes, absolutely.
In fact, Seattle Seahawks NFL player, Jeremy Lane, was cited for marijuana DUI in Washington in 2018. While his blood alcohol content was well under the legal limit, Mr. Lane also admitted to having smoked marijuana. This caused him to be arrested for suspicion of driving under the influence. You can read more about the incident by clicking here.
Every state in the United States, as well as Canada and Mexico, has laws that preclude driving while impaired, regardless of the substance that you’re impaired on. That means that you can get a ticket for driving under the influence of prescription drugs, alcohol, marijuana, or even too much caffeine if the officer decides that your driving ability is impaired. While US states typically have a statute specific to alcohol, each state also has another statute that serves as a catch-all for other impairment. This is often referred to as DUI-D, or driving under the influence of drugs. Some states have also begun to pass cannabis-specific statutes for impaired driving.
There’s significant latitude granted to police officers in their interpretation of the signs and symptoms of impairment. Even if you pass a breathalyzer test, or a standardized field sobriety test (SFST), if the officer on scene thinks you’re impaired, you can be arrested and have your bodily fluids tested for the presence of alcohol or other drugs. The problem for marijuana users is - how can they know how much is too much?
The legal limit is a fuzzy one, at best.
The obvious question for marijuana users is: how much marijuana can you consume and still legally drive? That’s a very difficult question to answer. Marijuana affects each user differently depending on frequency of use, strain of marijuana, how it’s consumed, and body chemistry. It’s best to simply avoid driving for the duration of the period of impairment - or about 4 hours for smoked marijuana, or 6 hours for edible marijuana.
In the US, the legal limit for driving under the influence of alcohol is 0.08% blood-alcohol content. Establishing a similar line for marijuana has been a goal of some legislators. It would be convenient if establishing such a limit could be done for marijuana, after all. This has led to a multitude of laws that have established the legal limit, or “per se” limit, of THC that can be in someone’s blood. These range from 2 to 8 ng/ml, depending on the state you’re in. The most important thing about these per se limits is that none of them are based on science.
That’s right - there’s no scientific backing for any bodily THC content being tied to any predictable level of impairment. These per se limits are disparagingly referred to as “political numbers,” or legal limits designed to appease politicians. There have been several scientific studies that have attempted to find a link between bodily THC content and impairment and all of these have failed.
The problem lies in how cannabis is metabolized and expelled by the body. Please see our detailed post on the subject by clicking here. Suffice to say, without a clear link between bodily THC content and impairment, DUI cases that rely on exceeding the per se limit established by a state will be very difficult for a prosecutor to win. One would only have to challenge the scientific validity of such a law to have the case dismissed.
Can you still get a DUI if you’re a medical marijuana patient?
Yes, even in states where using marijuana for medical purposes is legal, safe driving laws still apply to you. Because cannabis is lipophilic, or fat soluble, marijuana DUIs can be particularly challenging for medical marijuana patients. Essentially, regular users of marijuana will have non-psychoactive THC stored in their body fat. The body releases this THC over a long period of time. In fact, THC has been found in the body of heavy cannabis users for three or more weeks after they last used the drug. That means that a medical or recreational user of marijuana could have more THC in their body than their state’s per se limit allows, despite not having used marijuana in days. That’s right - you can get a marijuana DUI despite being sober.
It’s likely that these per se laws will be challenged and thrown out over the course of the next several years, but the possibility of being given a DUI despite being sober is cause for massive concern. Those convicted of marijuana DUI will face penalties very similar, or even identical, to those guilty of an alcohol DUI. That includes large fines, imprisonment, license suspension, probation, and more.
If you’re consuming marijuana, make a plan to not drive.
The bottom line with marijuana, as with any impairing substance, is to make a plan that doesn’t include getting behind the wheel during your window of impairment. For marijuana, that’s typically 4-6 hours after consumption of the drug. Edible cannabis can last longer, so plan accordingly. Be safe and pass the word on safe marijuana use, particularly when it comes to driving.
