By: William C. Head
Most DUI-DWI state statutes contain provisions making it illegal to drive a vehicle while under the influence of marijuana, inhalants or drugs. Most states separately deal with marijuana as an impairing substance, especially since marijuana DUI is second only to DUI alcohol, as the most common impairing drug proscribed by state driving under the influence laws. This means that common statutory provisions require some proof of driving while impaired by marijuana, showing that the drug was hampering your cognitive skills, or lowering your normal ability to drive. This type of “impairment” language applies to ALL types of drugs, whether over-the-counter, prescribed or contraband (illicit) drugs, or even alcohol.
Due to recent medical marijuana legislation (in about two dozen states) and relaxing recreational marijuana laws (in a few of states and the District of Columbia), enforcement of DUI marijuana or DWI marijuana laws in your state may be changing. Certainly, in the last few years, attitudes and the political climate for accepting marijuana use in the USA is moving toward a more permissive attitude.
Most people agree that marijuana laws and approaches about use of marijuana across the USA are changing due to the current administration occupying the White House. For decades, groups like NORML.org have been relentless in bringing pressure on legislators—on both the federal and state level, to decriminalize recreational marijuana use. Several states have finally begun to act, after the Obama administration told the Attorney General to back off the heightened enforcement attitude of the previous Bush Administration.
Now, a wide and diverse array of advocates and activists have begun pushing state lawmakers to pass updated DUI and drug possession laws acknowledging the therapeutic benefits of medical marijuana. America’s ridiculous, Draconian, 40-year “war on drugs” campaign that has cost the United States taxpayers tens of billions of dollars from incarcerating millions of Americans, whose crime is usually that they are addicted to marijuana or other drugs.
Because the marijuana laws are changing so rapidly, this article will not try to deal with such state DUI laws, and how each individual state is wrestling with enactment of medicinal marijuana, recreational marijuana, or other similar laws for legalization of marijuana for limited or virtually unlimited purposes. The changes are too many to list. The URL below maintains fairly up-to-date information on such new changes in national marijuana law enforcement: http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881
Most states also have enacted special marijuana DUI “per se” laws that prohibit driving AT ALL with any trace of any “contraband” substance or the “burn-off” (metabolites) products in your bloodstream. Contraband means “illegal for all purposes.” Since states are now allowing limited use of medicinal marijuana, a need exists for these states to establish a threshold amount of acceptable nanograms of marijuana burn off products, and be safe to drive a vehicle within THAT state. Blood tests or urine tests can detect minute traces of non-psychoactive contraband substances such as marijuana metabolites or cocaine metabolites for hours, days or weeks after the person has ceased using the drug.
For state DUI marijuana per se laws (e.g., in Georgia, under OCGA 40-6-391, and the (a)(6) subsection, no proof of impairment by the presence of the contraband drugs (or the burn-off products from such drugs) is necessary. In fact, a conviction for marijuana DUI per se can be obtained by the arresting officer saying he or she smelled burnt marijuana upon approaching the driver’s window, and the driver admitting to his or her use of marijuana within a fairly recent time frame. Typical police questioning at the beginning of a traffic stop or a DUI checkpoint screening is not protected by Miranda warnings, and what you say can incriminate you. All that is required at a roadside traffic stop or sobriety checkpoint is NAME and ADDRESS.
Disregarding the pungent smell of marijuana smoke, lingering forensic evidence from marijuana and other drugs of abuse ingestion is due to the fact that most drugs and chemicals that people ingest to “get high” are fat-soluble. This means that these traces of prior use are not washed out of the body by water, as alcohol is, due to being water soluble. These fat-soluble drugs like marijuana are stored in the fatty tissue of the body so that the liver can slowly break them to harmless byproducts and metabolites and then eliminate these marijuana metabolites over a period of days (or even for weeks, for heavy regular marijuana users or other contraband drugs). Because the psychoactive impact of marijuana dissipates fairly quickly, as opposed to a large dose of alcohol, there is no comparable way to test your drug levels, as might be done with alcohol by using a BAC calculator. You can only guess how much THC or other marijuana metabolite will be in your blood, if tested 48 hours or 72 hours after last marijuana use.
The length of time of marijuana or other drugs being detected depends on the drug, the dosage amount taken and over what period of time it was ingested (smoked, injected, swallowed or inhaled). Conviction for marijuana DUI-DWI per se is constitutionally permitted if the contraband drug or the metabolites of the contraband drug can be found in the person’s system. By remaining silent, and never admitting usage, the suspected DUI marijuana driver is doing all he or she can to protect important legal rights. Since some states, like GA, call for total loss of all driving privileges for conviction of DUI drugs – of any type— refusing to give a blood or urine test may be the option that some suspected marijuana DUI drivers take.
In challenging a DUI drugs case, the starting point for a skilled DUI Attorney is to see how the accusation, indictment or information is worded. If the Prosecutor has charged a DUI marijuana per se case that depends entirely on an incriminatory blood test, this the criminal defense lawyer may file a special demurrer (motion to quash) based on the defect in the charging instrument. Plus, a motion in limine seeking exclusion of the non-consensual, invasive, blood test under Missouri v. McNeely grounds or other implied consent challenge could result in the blood test being suppressed.
To hire a top marijuana possession or marijuana DUI lawyer, call Mr. Head at 1-888-384-4323, or email him at email@example.com for a referral in any state. Mr. Head and his partners and affiliates in GA offer aggressive defense of all felony marijuana and misdemeanor charges, including marijuana DUI.