Marijuana DUIs: Has Science Finally Caught Up?

Within the last few years, Marijuana laws have drastically changed in Colorado. In 2000, Colorado voters approved a constitutional amendment that allows people to possess and use marijuana for medical purposes. In 2010, the state enacted a law that provided a licensing system that allowed people to secure licenses to purchase medical marijuana. It also allowed dispensaries to be established as places where people could lawfully obtain medical marijuana. In 2014, the state enacted a recreational marijuana law, which allows people to possess and purchase marijuana for personal use and to grow up to six marijuana plants.

While marijuana use has become widely accepted in the state, its widespread use for both medicinal and recreational purposes has led to questions about its impact on people's ability to safely operate motor vehicles. Colorado drivers who are impaired by impaired by tetrahydrocannabinol or THC--which is the psychoactive component of marijuana plants--receive the same penalties as those driving under the influence of alcohol.

While tests for alcohol impairment are backed by a large body of research and evidence, marijuana impairment and testing are not.

This disparity has led to problems within the criminal justice system because they aren’t sure how to determine if a driver is impaired by THC while they were pulled over.

Problems with Marijuana DUI Testing in Colorado

When people ingest alcohol, the concentration in their bloodstreams will peak within two hours of when they had their last drink. People who have ingested alcohol will show the greatest degree of impairment when their blood alcohol concentrations are at their highest level. This makes it possible for law enforcement officers to ask drivers to submit to breathalyzer tests within two hours of when they last drank to determine whether their blood alcohol concentrations exceed the state's established legal DUI limit of 0.08%. Alcohol quickly dissipates from the bloodstream over a few hours.

By contrast, THC levels build up in the body over time. For people who regularly use THC, they may store metabolites in their cells, and this can show up on tests weeks later. This means that drivers can return a positive test for THC weeks after they used it, although they weren’t actually impaired by marijuana while they were driving. There is also no agreement in the scientific community about what amount of THC in the bloodstream is impairing.

Chronic marijuana users may have high concentrations in their bodies and not be impaired, while people who don’t use marijuana regularly may be impaired after ingesting a smaller amount. TheNational Highway Traffic Safety Administration reported to Congress that there is little evidence of a correlation between the tested amount of THC in the blood and the driver’s impairment.

Colorado has established a legal limit for active THC in the bloodstream of5 ng/ml. However, this is an arbitrary amount that was chosen by the legislature, and that may not be impairing for all people. Unlike tests for alcohol, there are no established tests that can readily tell law enforcement officers if people might be impaired by THC at the roadside, such as the preliminary breath test. These and other problems with marijuana DUI testing may lead to people being arrested and charged for marijuana DUIs when they are not impaired.

Drug Recognition Experts & Roadside Tests

Law enforcement agencies in Colorado rely on drug recognition experts or DREs to determine whether someone might be impaired by substances other than alcohol at the time that they are stopped. These are officers who have undergone training to recognize signs that a person may be impaired by drugs. When someone is stopped for suspicion of DUI and passes a roadside PBT, the officer may call a DRE to the scene if the officer believes that the driver is impaired by other substances.

The DRE will perform several tests that ostensibly indicate impairment from drugs. If the driver fails these tests, they may be arrested on suspicion of drugged driving and taken to the police station for further testing. Since there is not a reliable breathalyzer test for marijuana, the driver may instead be asked to submit to a blood test. Blood tests will show both the active and inactive components of THC, meaning that people may exceed the arbitrary limit established by the state even if they are not impaired at the time that they were stopped.

Marijuana DUIs & Marijuana DWAIs Defense

There are no separate laws in Colorado that expressly deal with driving under the influence of marijuana. Instead, people who are charged with these offenses are prosecuted under the same statutes that are in place for DUIs and DWAIs involving alcohol. If a blood test reveals that your blood alcohol concentration of THC exceeds 5 ng/m1, there is a rebuttable presumption that you were impaired by marijuana. However, you can present evidence showing that you were not impaired by THC at the time and that you were driving to overcome this presumption.

Some of the common defenses that might be raised in a marijuana DUI or DWAI case include the following:

  • Your stop was not supported by probable cause
  • The officer did not have a reasonable suspicion that you used marijuana or to ask you to submit to a blood test
  • You were not properly advised of your rights
  • The DRE did not administer the roadside tests properly
  • Your DUI blood test was not administered properly
  • You were not impaired by marijuana at the time that you were stopped
  • You had a different reason for driving poorly such as being sick, tired, or distracted

Call Our Denver Marijuana DUI Defense Attorneys!

Marijuana DUIs and DWAIs can result in a criminal record that can impact your ability to find employment and to obtain financial aid for higher education. Since the current testing methods for impairment from marijuana are not supported by science, getting help from an experienced DUI lawyer is vital. Our legal team at Law Office of Kevin Cahill can help you build a strong case to defend you against a marijuana DUI or DWAI charge. Our Denver marijuana DUI defense lawyers have handled thousands of cases and have helped clients get their charges reduced or even dismissed. We are ready to help you protect your future after you’ve been arrested for marijuana DUI.

Contact the Law Office of Kevin Cahill to schedule a confidential consultation by calling (720) 548-2990. We are available 24/7!

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