Marijuana & Other Drug DUIs On the Rise

There is a growing trend across the country of convicting people of DUIs even though there is no real evidence, scientific or otherwise, supporting that the driver was even impaired. Welcome to non-alcohol drug related DUIs.

If you use drugs, whether prescribed or recreationally, you may be unpleasantly surprised to find yourself charged with driving under the influence of those drugs. The word 'drug' is broadly defined and includes those prescribed by a licensed physician and it is no defense that it is being used for valid medical reasons.

Marijuana is specifically getting more attention as well. In legislatures across the nation, marijuana is starting to take center stage as state lawmakers are ignoring science and evidence to create a new class of criminal; the marijuana impaired driver. In November 2012, the State of Washington became the latest state to create a "per se" level of 5 ng/ml for marijuana DUIs. The legislation was boot-strapped to a proposition that legalized possession of small amounts of marijuana (no doctor prescription needed). This issue was hotly debated before proponents caved in to keep the legalization part alive.

As a backdrop for understanding what is happening with marijuana and other drugs alike, it is important to first understand the basics of DUI charges. In California, like most states, one can be convicted of a DUI under one of two code sections alleging a violation of the law.

The first section makes it illegal to drive "under the influence" or while "impaired". The language defining "under the influence" in California is driving while "your physical or mental abilities are impaired to such a degree that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances".

The second way one may be convicted of a DUI is under a "per se" violation. This is driving while with more than a certain measurable amount of intoxicant based upon some predetermined numerical value (whether speaking of a certain amount of alcohol or some presence of a drug, most commonly a measurement referred to as some presence of a metabolite.) For an alcohol related DUI, the 'per se' limit is .08%. This means if a chemical test come back at .08% or above, then you are in violation of the 'per se' DUI law regardless if you are actually impaired or not.

Problematically, when it comes to drugs like marijuana there is no scientific information available as to what amount of metabolite makes one impaired. Some states have made it illegal to have any amount of any metabolite of marijuana present in the blood while others, like Washington, arbitrarily selected 5 ng/ml. Neither are valid conclusions of impairment based on any known science. By comparison, it would be as if you would be convicted for an alcohol related DUI for registering a .01% on a breath or blood test. A chronic or recent user of marijuana could be arrested and convicted of a DUI offense even though the marijuana consumed does not have any negative affect on the person's ability to drive. Numerous studies support the position that chronic users of marijuana will show elevated THC levels even after sustained periods of abstinence from marijuana use. This is because marijuana is fat-soluble while alcohol is water-soluble.

In California, prosecuting marijuana DUIs can be difficult because the state does not yet have a 'per se' limit for marijuana-related metabolites in your system. This means that the prosecutor must prove that your driving was actually impaired by the "marijuana" in your system despite the fact that some studies have shown that having marijuana in one's system can actually make a person a better driver (based in part on the fact that the driver tends to compensate for the effect of the marijuana by undertaking certain compensation mechanisms, including driving slower.)

It is equally difficult to establish a 'per se' level of impairment for other drugs. So, while this can be problematic for the prosecution to prove to a jury once you have been charged with a DUI, the ease with charging someone with this type of driving under the influence it is a bigger problem for drivers. Defending these cases takes a very skilled and knowledgeable attorney and the financial resources to pay for a proper defense. As it stands now, too many innocent people are convicted for this type of charge. This is why you need to hire an attorney that understands both the law and science connected with defending you.

If you think you are safe because you do not live in a state that has a zero tolerance or a "per se" level for marijuana DUIs, start to worry now. There are over a dozen states with such laws on the books and California currently has draft legislation being proposed to become the next state to sanctify convicting a person of a DUI where there is no evidence of driving impairment.

To compound this injustice, the direct and indirect consequences of being convicted of a DUI are getting more severe with each passing year. Aside from fines, other costs, probation, loss of license, loss of employment, and incarceration, there are even potential prohibitions on free travel to certain countries. For instance, being convicted of a DUI is a bar to admission to Canada, regardless of the nature of the DUI (alcohol, drugs, marijuana, etc). You have to wonder if the citizens of Washington and Michigan who neighbor Canada were truly informed when these laws were cast upon them. More than once, we have been able to help navigate clients back to Canada but that mandated both an aggressive defense locally and the assistance of a very knowledgeable immigration attorney in Canada.

If you or a loved one is charged with a DUI, you owe it to sit down with an attorney that can have an informed, intelligent discussion about your options and particular situation. There is no firm with more knowledge on DUIs in Humboldt or the North Coast.

  • Michigan Goes Zero Tolerance on Marijuana DUIs (Manny Daskal NCDD Cited)