Noah Vinter
Driving under the influence of marijuana is illegal in all US states, and a marijuana DUI can carry substantial penalties. However, the rules for when and how this occurs vary by state. While some states have per se DUI laws that apply to marijuana, prohibiting driving with a certain concentration of THC in the driver's system, others apply a threshold similar to DUI laws regarding alcohol. The penalties for a DUI for weed are typically the same as those for an alcohol-related DUI conviction.
| Characteristics | Values |
|---|---|
| DUI laws regarding pot | Vary by state |
| DUI laws regarding alcohol | Vary by state |
| DUI for pot | Possible |
| DUI for alcohol | Possible |
| Penalties for DUI for pot | Similar to alcohol DUIs |
| Factors influencing sentencing for DUI | Previous criminal record, injuries or deaths |
| Testing for DUI for pot | Blood, saliva, urine |
| Testing for DUI for alcohol | Blood, breathalyzer |
| "Per se" DUI laws for pot | Exist in some states |
| "Per se" DUI laws for alcohol | Exist in some states |
| "Per se" DUI laws for pot | Arbitrary and unsupported by science |
| "Per se" DUI laws for alcohol | Scientifically valid |
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What You'll Learn
- DUI laws for pot vary by state, with some having a zero-tolerance policy
- DUI charges for alcohol are not the same as for pot, with different consequences
- DUI pot laws are considered unscientific and unsupported by research
- DUI tests for pot are not as reliable as those for alcohol
- DUI penalties for pot are similar to alcohol, but factors like previous convictions are considered
DUI laws for pot vary by state, with some having a zero-tolerance policy
DUI laws for pot vary across different states in the US. While driving under the influence of marijuana is illegal in all states, the rules for when and how someone can be charged with a DUI for weed vary.
Some states have a zero-tolerance policy, with ""per se" DUI laws that apply to marijuana. These laws prohibit driving with any amount of marijuana in the driver's system. This can be problematic in states where marijuana is legal, as marijuana metabolites can remain in a person's system for days, weeks, or even months after use.
Other states apply a threshold similar to DUI laws for alcohol. For example, in Colorado, a driver with five nanograms or more of active THC in their blood may be arrested and charged with a DUI. However, the AAA Foundation for Traffic Safety has concluded that per se laws are "arbitrary and unsupported by science", and their analysis indicates that a limit of five nanograms per millilitre misses 70% of cannabis-impaired drivers.
Thirty-three states have "effects-based" DUI laws that criminalize a person for driving while truly impaired, which is determined based on all available evidence. This may include footage or testimony about how the person drove, the results of a 12-step analysis by a drug recognition expert, whether the person smelled of marijuana, and the results of a blood test for THC.
Penalties for a DUI for marijuana are typically similar to those for an alcohol-related DUI conviction, although sentencing can vary depending on factors such as the offender's previous criminal record and whether the DUI involved injuries or deaths.
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DUI charges for alcohol are not the same as for pot, with different consequences
DUI charges for alcohol are not the same as those for marijuana, with different consequences and varying laws across US states. While the blood alcohol concentration (BAC) limit for drunk driving is typically set at 0.08% across states, there is no universally accepted THC limit for driving under the influence of marijuana. This is because the effects of THC on driving ability are more complex and less understood than those of alcohol.
Some states have adopted a limit of five nanograms per milliliter (ng/mL) of THC in whole blood for DUI charges, but this misses around 70% of cannabis-impaired drivers, who may test at a lower level. Additionally, a person can test below this threshold and still be charged with a DUI if other evidence of impairment is presented, such as erratic behaviour or the smell of marijuana in the vehicle.
The penalties for a DUI involving marijuana are generally similar to those for alcohol. However, the specific consequences can vary depending on the state, the offender's previous criminal record, and whether there were injuries, deaths, or minors involved in the incident. For example, in Colorado, a first offence for a driver under 21 years old can result in a three-month license suspension, a fine of up to $100, and up to 24 hours of community service.
It is important to note that even in states where marijuana is legal, driving under its influence is illegal and can result in a DUI charge. Additionally, having a medical marijuana card does not exempt individuals from DUI charges if they are found to be driving while impaired.
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DUI pot laws are considered unscientific and unsupported by research
The AAA Foundation for Traffic Safety evaluated data on THC-positive drivers and drug-free controls, along with drug recognition expert evaluations, to determine if there was a set threshold for a per se driving law for cannabis. However, their analysis did not support the need for such a law. As AAA Director of Traffic Safety Advocacy and Research Jake Nelson stated, "There is no concentration of [THC] that allows us to reliably predict that someone is impaired behind the wheel in the way that we can with alcohol."
Some states have adopted a limit of five nanograms per milliliter (ng/mL) of THC in whole blood, but this limit has been criticized as arbitrary and unsupported by scientific evidence. The AAA analysis suggests that this limit fails to identify 70% of cannabis-impaired drivers, who test at a lower THC level. At the same time, it may ensnare sober drivers who had used marijuana much earlier or were exposed to second-hand marijuana smoke.
Research by the National Highway Traffic Safety Administration (NHTSA) further reinforces the view that DUI pot laws are unscientific. The NHTSA's large, case-controlled study found that drivers who tested positive for THC had the same crash risk as those who tested negative for cannabis when controlling for demographics and alcohol use. In contrast, drivers with a 0.05 blood alcohol content (BAC)—below the legal limit—had more than double the crash risk.
Instead of per se laws, several states have adopted "effects-based" DUI laws that criminalize driving while truly impaired, regardless of the substance involved. These laws consider all available evidence, including footage or testimony about the person's driving, the results of a drug recognition expert's analysis, the smell of marijuana, and the results of a blood test for THC. However, even with these more flexible laws, determining impairment due to marijuana use remains challenging due to the slow clearance of THC from the body.
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DUI tests for pot are not as reliable as those for alcohol
Blood alcohol concentration (BAC) tests are widely used to determine whether a driver is over the legal limit for alcohol, which is typically set at 0.08% BAC. However, when it comes to marijuana, the situation is more complex.
The main challenge with marijuana impairment testing is that there is no universally agreed-upon threshold of THC (the psychoactive ingredient in marijuana) that indicates impairment. Some states have adopted a limit of five nanograms per milliliter (ng/mL) of THC in whole blood, but this limit has been criticized for being arbitrary and unsupported by science. The AAA Foundation for Traffic Safety evaluated data on THC-positive drivers and concluded that there is no concentration of THC that reliably predicts impairment in the same way that BAC does for alcohol.
Additionally, marijuana testing often measures the level of marijuana metabolites, which can remain in a person's system for days, weeks, or even months after drug use. This means that a person could test positive for marijuana even if they consumed it well before driving, and their driving ability may not be actually affected by the drug.
In some states, prosecutors must prove beyond a reasonable doubt that the driver was actually impaired, regardless of the THC level in their system. This can be determined through field sobriety tests, testimony about the person's driving, and the observations of Drug Recognition Experts. However, without a clear scientific threshold for THC impairment, these assessments may be subject to interpretation and vary from state to state.
While the penalties for a marijuana-related DUI are typically similar to those for an alcohol-related DUI, the lack of a standardized and scientifically validated test for marijuana impairment creates challenges for law enforcement and drivers alike.
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DUI penalties for pot are similar to alcohol, but factors like previous convictions are considered
DUI laws regarding pot vary across states in the US. While some states have a "per se" DUI law, which means that driving with any amount of marijuana in one's system is illegal, other states apply a threshold similar to DUI laws regarding alcohol. In these states, if a marijuana DUI test shows that the drug is in the driver's blood or urine above a certain concentration level, the person is considered to have been driving under the influence. For example, in Colorado, a driver with five nanograms or more of active THC in their blood may be arrested and charged with a DUI.
Despite these differences, the penalties for a DUI for marijuana are generally the same as those for an alcohol-related DUI conviction. However, state laws vary, and several factors can influence sentencing. For instance, a judge can consider factors such as whether the car was parked or moving, turned on or off, or had the keys in or out of the ignition. Other factors include the driver's previous convictions, whether an accident was involved, and whether there was a minor in the vehicle at the time of the arrest.
In California, a first offence for a DUI of marijuana or alcohol can result in a six-month driver's license suspension, with the offence usually being charged as a misdemeanour. If someone is seriously injured, the offence becomes a "wobbler", which can be charged as either a misdemeanour or a felony, at the prosecutor's discretion.
It is important to note that driving under the influence of marijuana is illegal in all states, even if marijuana has been legalized for medicinal or recreational use. While the presence of THC in a driver's system may not directly correlate with crash risk, it is still illegal to drive while impaired by marijuana or any other drug.
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Frequently asked questions
No. A DUI charge from alcohol is not the same as a DUI charge from pot, nor do they carry the same consequences. DUI laws regarding pot vary by state. Some states have a "per se" DUI law, meaning any amount of marijuana in the system is illegal. Other states apply a threshold, similar to DUI laws regarding alcohol.
A "per se" DUI law means that any amount of marijuana in a driver's system can result in a DUI arrest. Marijuana testing usually measures the level of marijuana metabolites, which can remain in a person's system for a long time after drug use.
The penalties for a DUI for pot are similar to those for alcohol. The consequences of a first offense may include a fine, license suspension, community service, or a combination of these. The severity of the penalties depends on the number of times a person has been charged, their age, and whether there were injuries or deaths involved.
If a police officer suspects someone is driving under the influence, they may ask them to take a blood test. Unlike with alcohol, there is no breath test for marijuana. The blood test will show the THC concentration in the driver's blood. If the concentration is high, it will be used as evidence of the driver's level of impairment.
Yes. Having a medical card does not mean anything when it comes to driving under the influence.
