Marijuana Users Can Still Get a DUI Even When Driving Sober

Though legalization in our state is approaching its second anniversary, a new problem is emerging for both law enforcement and users alike—no one is sure how to address the issue of people who drive while high on marijuana.

Colorado’s laws and official position on the matter haven’t changed since pre-legalization days. To police and prosecutors, a stoned driver is just as dangerous as a drunk driver. The Colorado Department of Transportation has outlined the state laws on their website as part of their campaign to prevent drugged driving, “Drive High, Get A DUI.”

From CDOT’s website: “Marijuana affects reaction time, short-term memory, hand-eye coordination, concentration and perception of time and distance. Getting high and getting behind the wheel of a car will get you arrested for a DUI – this law hasn’t changed with the legalization of marijuana in January 2014.”

The site also outlined the method police are using to establish whether a driver is high on marijuana behind the wheel: “DREs (drug response experts) also use chemical tests for drugs…similar to alcohol, there is an established impairment level in Colorado of five nanograms of active tetrahydrocannabinol (THC)—the active psychoactive component of marijuana—per milliliter of whole blood.”

But there’s a big problem with this simple, straightforward thinking. Just because a driver has THC in their blood, it doesn’t mean they’re high.

No “Marijuana Breathalyzer”

While the accuracy of standard breathalyzer tests is sometimes questionable, in general they provide a fairly reasonable way to tell if someone is currently under the influence of alcohol. The machine can roughly determine the amount of alcohol in your bloodstream when you blow into it. The police infer your degree of intoxication with a decent amount of accuracy from the results of this test.

Unfortunately, there is no equivalent to the breathalyzer for marijuana. Instead, police use the above-mentioned chemical blood tests to determine whether or not a driver is under the influence.

But THC can stay in the system for a week or more. For marijuana users, this means the law could consider them “under the influence” even if they last used the drug days ago and its effects have long since worn off. Though the driver is completely sober, latent marijuana chemicals that surpass the legal limit may still be present in his or her system. It’s like getting arrested for drunk driving on Wednesday because you had a few too many with your friends on Saturday.

Is High Driving as Dangerous as Drunk Driving?

Further complicating matters, there’s no scientific consensus on how much marijuana impairs an individual’s driving ability. While it’s clear the drug has effects that can be negative behind the wheel—like delayed reaction time and diminished hand-eye coordination—there simply haven’t been enough studies to confirm that drivers under the influence of marijuana are as dangerous as drunk drivers.

Out of all drivers who were killed in crashes and tested for drugs in 2013, about 40% tested positive. Of those, more than a third tested positive for marijuana, according to a report from the Governor’s Highway Safety Association.

This data alone, however, is not enough to infer that marijuana was responsible for the crashes. The blanket term “drugs” refers to anything from OxyContin to marijuana to blood pressure medication. Many of those tested had several different drugs in their system at the time of the accident, suggesting the marijuana could not have been wholly responsible for the crash. The tests also failed to note the levels of marijuana in the drivers’ systems—meaning that the marijuana could have been consumed over a month ago.

No One Knows How Much Is Too Much

Comparing alcohol and marijuana raises another serious concern—users simply aren’t certain how much marijuana is too much to drive. With alcohol, a reasonable estimation can be made from the number of drinks you’ve had and the period of time over which you consumed them. The CDOT even created a BAC calculation app based this estimation.

Marijuana users don’t have any convenient metric to gauge their level of intoxication. Is half a joint too much? What about one hit? What if the weed is a potent strain? And how long until you are able to drive again after you smoke?

Regardless of the questions, the penalty for stoned drivers is the same as drunk drivers: a DUI. In Colorado, this means that first offenders could face jail time ranging from 5 days to 1 year, in addition to a fine of $600-$1000. The fines don’t include a number of mandatory charges and treatment costs, which according to No DUI Colorado can be up to $700 dollars. Additionally, those convicted may lose their license for 9 months to a year.
Unfortunately, not knowing the answers to these questions means even responsible recreational users will find it difficult to follow the law. If you find yourself charged, make sure one of the first things you do is get an experienced drugged driving attorney on your side.

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