In this series of blogs we are going to discuss the effect on DUI laws in states where recreational marijuana use has been legalized. Since New Jersey seems to be on the cusp of legalization, this series will look at how other states handle Marijuana DUIs. This can give us an idea of how New Jersey may handle them as well. It is important to note that in many other states DUIs and DWIs are criminal offenses, while in New Jersey they are motor vehicle offenses.
The issue of how to test for marijuana are applicable to all states. The problem with blood tests and marijuana is that, unlike alcohol, marijuana can stay in your blood for several weeks after using it. Therefore, blood tests are not accurate in showing when the marijuana was consumed and how much was consumed. Further, depending on your habitual marijuana use, the level in your system can vary, regardless of recent use.
Urine tests do not have the ability to detect THC (the active ingredient in marijuana), just marijuana metabolites. This is problematic because THC is the active ingredient that causes the high which could impair driving. However, especially with medicinal marijuana that has a high cannabidiol (CBD) level and limited, if any THC, this is a issue. CBD does not cause intoxication and therefore CBD alone cannot impair a driver.
California is similar to New Jersey, where in order to be found guilty of a DUI or DWI the State must be able to prove that 1) the driver was intoxicated, 2) the intoxication impaired the driver’s ability to safely operate a motor vehicle, and 3) the driver operated the motor vehicle. The following is from CALCRIM 2110:
“A person is under the inﬂuence if, as a result of (drinking [or consuming] an alcoholic beverage/ [and/or] taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.”.
Unlike a DWI, where there is a specific legal limit defined as a blood alcohol content by percentage, there is no such restriction in California. Later in this series, we will look at Washington State, which does have a legal limit on the amount of THC (delta-9-tetrahydrocannabinol) allowed in your system. A test like the Alcotest (breath test machine), is not available for marijuana levels and the only way to find whether marijuana is in someone’s system is through a blood test or urine test (which is not able to detect THC).
So, how does a marijuana DUI get proven in California? The State will rely on several factors, including, but not limited to: how the Defendant was driving, statements made to police, the presence of marijuana or drug paraphernalia in the vehicle, odor of marijuana, physical symptoms, blood or urine tests and performance on the Standard Field Sobriety Tests (SFST).
There is a question, due to a recent US Supreme Court case, Birchfield v. North Dakota, whether refusing a blood test can trigger enhanced sentences. In Birchfield, the US Supreme Court clearly states that it is unconstitutional to have a separate offense of “refusal” for a blood test without a warrant. However, in California, it is not a separate offense, it is just enhanced penalties for refusal to submit to chemical testing.
The question remains about how a Refusal to Submit to Chemical Testing, will be handled with the legalization of marijuana in California and New Jersey. Many issues with how to prosecute and defend marijuana DUIs and how chemical testing will fit in with these cases in the future have not even been begun to be addressed.
Looking ahead, New Jersey can handle DUIs with legalized marijuana several different ways, and historically, New Jersey has adopted laws from other jurisdictions, especially California, when dealing with new issues. In future installments of this blog we will continue to examine what other states have done in hopes of gaining insight into how New Jersey will address these issues as they arise.
Please also review this article on how Colorado handles driving impairment.