This is the second installment of a series of blogs discussing how different DUI laws are adopted in states where recreational marijuana use has been legalized. As New Jersey is 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.
The last state we looked at was California. In this article we will be looking at the DUI laws related to marijuana in Colorado. Please review the issues involving testing we discussed in the last installment.
One of the major differences we see in Colorado, is not only is there a charge for Driving Under the Influence, but there is also an offense called Driving While Ability Impaired (“DWAI”). This does not usually have a license revocation, and is a lesser offense. The State in these DWAI cases, must show that your ability to operate a motor vehicle has actually impaired, but not enough to rise to level of DUI. A DWAI is when marijuana affects you so that your ability to safely operate a vehicle, either physically or mentally, is less than what it ordinarily would be.
A DWI, with alcohol, can be proven as either a “per se” violation, meaning you have a BAC over .08%, the legal limit or it can be based on the observations the officer has made of an individual, the performance on psychophysical testing, and motor vehicle violations such as failure to maintain lane. In Colorado there is no per se violation for the DUI statute, there has to be objective evidence of an impairment of an individual’s ability to drive. However, a fact finder is able to infer, that you are under the influence if there are 5 or more nanograms of delta 9-tetrahydrocannabinol (THC) per milliliter in the blood.
Many states have “implied consent” rules that you agree to as a condition of getting a driver’s license. In New Jersey this that means that if a police officer has probable cause to arrest you for a DWI, you must submit to taking a breath test. Not taking one is a separate motor vehicle offense and triggers additional penalties and fines. New Jersey has no law creating an offense for failure to submit a blood or urine sample. In Colorado, this implied consent applies to chemical testing, not just the breath test. You are offered a choice of either the breath test or the blood test in most cases. However, if the officer reasonably believes that your intoxication is due to drugs, they can require you to take a blood test instead of, or in addition to, a breath test.
Five (5) nanograms of THC per milliliter is the level of intoxication that has been adopted by several states. There is no guidance from any legislation indicating whether this is something that will be adopted by New Jersey lawmakers. There is considerable debate in the scientific community as to whether a fixed standard of THC per milliliter is even a proper standard to determine impairment to operate a motor vehicle. We will continue to examine this issue and the laws of other states in future installments of this blog.