The tragic consequences of driving under the influence of alcohol have been highly publicized. The harsh penalties and lasting effects are well known. What many people don’t realize though is that alcohol is not the only substance that can get you a DUI.

Driving under the influence of drugs is also illegal. You can get a DUI for driving while under the influence of illegal drugs like heroin and cocaine as well as legal drugs like Oxycodone and Hydrocodone.

What may surprise some people is that driving under the influence of marijuana can also get you a DUI.

Federal and state laws have made driving under the influence of marijuana illegal. Different states have laws that define driving under the influence, legal limits, and punishments for breaking the laws.

So, if you get stopped and have been consuming marijuana to the point that you have exceeded the legal limit, you could be charged with DUI.

If you have been charged with a marijuana DUI, you could be facing some harsh penalties and a record that will follow you forever.

Getting a criminal defense attorney is your best chance to avoid at least some of those penalties.

Marijuana DUI Overview

Even though several states have legalized marijuana, it is still illegal to drive while you are under its influence. In fact, driving under the influence of marijuana is illegal in all states and it can carry substantial penalties. The reason is that there have been studies that have shown that driving under influence of marijuana increases the risk of accidents due to slower reaction times, impaired decision making, and decreased peripheral vision. 

Marijuana DUI laws vary from state to state. Some other states have limits regarding how much marijuana a person can legally have in their system. Other states, like New York, have “per se” laws meaning that drivers can be charged with a marijuana DUI no matter how much, or how little, of the drug they have in their system and even if there is no other evidence that they are impaired – including their behavior.

This is problematic because marijuana compounds can remain in a person’s system for days or even months after using the drug. Marijuana in the system is measured by checking the levels of marijuana metabolites, called THC, in the driver’s blood or urine. They don’t clear out of the system as fast as alcohol does.

Medical marijuana use can occur hours or days before the person gets behind the wheel, yet if they are stopped, the drug could show up in their system and they could wind up with a DUI.

What are the Forms of Marijuana that can Get You a DUI?

The traditional dried flowers that come from the cannabis plant are probably the best-known form of marijuana. Most people smoke it by rolling it into a cigarette but can also use pipes, cigar wraps, and bongs. They can also use special electronic devices to vaporize it. 

It can also be added to food to make edibles:

  • Brownies
  • Cookies
  • Honey 
  • Popsicles
  • Cakes
  • Crispy treats
  • Candy bars
  • Cereal bars
  • Gummies
  • Juices 
  • Teas

There are also marijuana extracts or concentrates that are some of the most potent forms of the drug.

Can CBD Products Cause You to Get a DUI?

Using products that contain CBD oil is unlikely to result in a DUI charge, but that is not guaranteed. CBD is not well regulated, which means its THC levels are often unknown. There have been studies done that show most CBD products contain some amount of THC, even if it is trace amounts. This is true even for CBD products that are marketed as being non-intoxicating. There were cases of failed drug tests after the use of CBD products.

If you take CBD products, typically oil, and get pulled over, the officer may assume that you are intoxicated because of your relaxed behavior and slow reactions. It could be enough to get them to check your levels. It could lead to a conviction of marijuana DUI.

What it means to be “Under the Influence”

Most states define “under the influence” as a condition that a person is in after consuming alcohol or drugs. Driving under the influence means that the person who is driving or operating the vehicle is not capable of operating the vehicle safely or driving safely because of the effects that the substance has on their system.

This could often mean slow reaction times, difficulty staying conscious or awake, impaired cognitive function, physically unstable or unable to walk a straight line, slurred speech, and poor decision making. In many states, such behavior can be enough to be charged with DUI.

Can a Medical Marijuana Patient Drive while Using Marijuana?

Some states have made medical marijuana legal, but that doesn’t mean that driving under the influence is legal. Just as it is illegal to drive while under the influence of certain prescription medications like Oxycodone and Hydrocodone, it is also illegal to drive while under the influence of medical marijuana.

Taking marijuana for medical purposes does not exempt you from abiding by your state’s DUI laws. There isn’t a single state in the U.S. that allows drivers to operate vehicles while taking medical marijuana.

However, it is possible to take medical marijuana and drive lawfully.

For a person to be convicted of a marijuana DUI, the prosecutor must prove that the driver was under the influence of the substance, including marijuana. This is typically done in one of two ways:

  • Providing test results that show the driver had THC or a certain amount of THC in their bloodstream.
  • Proving that the driver was impaired by the marijuana they consumed

What Constitutes Driving?

Most people believe that to get charged with DUI, a person must actually be driving the vehicle and that the vehicle is in motion. This is not the case in most states. In many states, if a person is in actual physical control of a vehicle, then they are considered to be the driver. This broadens the definition of operating or driving a vehicle.

A person can be in physical control of a vehicle even if it is parked.

Usually, once the person gets to court, it is up to the judge and jury to determine if the person was in actual physical control of the vehicle. They will consider these factors:

  • If the vehicle was moving or if it was stationary
  • Location of the vehicle such as a road, driveway, parking lot, etc.
  • If the vehicle was running or if it was turned off
  • If the vehicle was operable
  • If the defendant had access to the keys
  • If the keys were in the ignition or if they were somewhere else (in a pocked, in the console, on the floorboard, etc.)
  • The driver’s state of consciousness – were they awake or asleep in a vehicle that was parked
  • Did the vehicle have fuel in the tank
  • Where was the driver – in the driver’s seat, the back seat, etc.

This is another gray area where it pays to have a good criminal defense attorney on your side.

Federal Marijuana DUI Laws

A Federal marijuana DUI is governed by 36 CFR § 4.23 – Operating under the influence of alcohol or drugs. There is no federal statute that directly addresses marijuana DUI, but drugs are included in this statute. The law does establish some limits but defers to the state if state laws are more stringent.

§ 4.23 Operating under the influence of alcohol or drugs.

(a) Operating or being in actual physical control of a motor vehicle is prohibited while:

(1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or

(2) The alcohol concentration in the operator’s blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath. Provided, however, that if State law that applies to operating a motor vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator’s blood or breath, those limits supersede the limits specified in this paragraph.

(b) The provisions of paragraph (a) of this section also apply to an operator who is or has been legally entitled to use alcohol or another drug.

New York DUI Laws

In New York, there are a couple of laws that apply to driving under the influence of marijuana.

  • New York Vehicle and Traffic Law – Article 31 – Alcohol and Drug-Related Offenses and Procedures
    • Makes it illegal to operate a vehicle while ability impaired by drugs (DWAI/Drugs)
    • It is a violation of the first offense
  • Leandra’s Law
    • Individuals charged with driving with a blood-alcohol level of .08 or greater and with a child under the age of 16 in the vehicle would automatically have their license suspended pending prosecution. Drivers who drive while intoxicated or impaired by drugs and cause the death of a child younger than 16 in the car may be charged with a Class B felony, punishable by up to 25 years in State prison. Drivers who drive while intoxicated or impaired by drugs and cause serious physical injury to a child in the vehicle may be charged with the Class C felony, punishable by up to 15 years in State prison. Individuals who are a parent, guardian, custodian, or otherwise legally responsible for a child who are charged with driving while impaired by alcohol or drugs while that child is a passenger in the car would be reported to the Statewide Central Register of Child Abuse and Maltreatment by the arresting agency.

What is the Minimum Amount of THC is Required for a DWI in New York?

In New York, there is no minimum amount of THC that is required for a marijuana DUI charge. This is different from an alcohol DWI which requires a BAC of 0.08%. Any amount of THC that is found in the driver’s bloodstream and an allegation of impairment could get a DWAI/Drugs charge.

First offenses have smaller fines and jail time but repeat offenders can get charged with a felony and must pay steep fines as well as spend time in prison.

Penalties for Federal Marijuana DUI Charges

A federal marijuana DUI that does not occur in a National Park is subject to the DUI laws of the state where the offense occurred. This includes the penalties.

Second and third-offense marijuana DUIs are more severe with high fines and jail sentences. If there is a child in the car the penalties increase even more.

Steep fines of as much as $10,000 and as much as seven years in prison are what a person convicted of a felony marijuana DUI can expect. Suspension of driver’s license is also part of the usual sentence.

Penalties for New York Marijuana DUI Charges

  • New York Vehicle and Traffic Law – Article 31 – Alcohol and Drug-Related Offenses and Procedures
    • First Offense
      • Violation
      • Minimum Fine $300
      • Maximum Fine $500
      • Maximum 15 days in jail
    • Second Offense within five years
      • Minimum Fine $500
      • Maximum Fine $750
      • Maximum 30 days in jail
    • Third Offense (or more) within ten years
      • Minimum Fine $750
      • Maximum Fine $1,500
      • Maximum 180 days in jail

Marijuana DUI Defenses

Attorneys will use various defenses based on the circumstances of the crime. While marijuana laws are still relatively new, many of the processes regarding marijuana-based crimes are still being worked out. This holds true for marijuana DUI.

Some of the common defenses include:

  • The person is prescribed medical marijuana and they took it at an earlier time, but THC stays in the system even after it no longer impairs the person
  • Unlawful search and seizure
  • The vehicle stop was illegal
  • There were problems with the drug testing
  • The defendant was not in control of the vehicle ‘
  • Defendant was not impaired

If you have been charged with a Federal marijuana DUI or a marijuana DWAI/Drug charge in New York, you probably have some questions. Don’t leave your fate to chance, get a lawyer now.

Call The Litvak Law Firm and get the representation that you deserve. Mr. Litvak is a skilled, experienced marijuana DUI attorney and he will fight to ensure that your rights are protected. He has the experience and training that you need to make sure that your case has the best possible outcome. Call today at (718) 989-2908.