Driving High and DUI in COLORADO

​According to the Denver Post, there are more marijuana dispensaries in Colorado than Starbucks. With marijuana legalization in Colorado and its increased accessibility comes confusion and new challenges surrounding the law of marijuana use and driving.  

In Colorado, driving while under the influence of marijuana can land you a misdemeanor charge for DUI (assuming it’s not your fourth or subsequent offense, which can be charged as a felony). Contrary to popular belief, this behavior is not legal because marijuana itself is legal, nor is there a separate or lesser offense for driving high on marijuana. Instead, like alcohol, it falls under the Colorado DUI statue (C.R.S. Section 42-4-1301). DUI is defined as follows:

• “Driving Under the Influence” (DUI) is defined in Colorado as driving while being substantially incapable, either mentally, physically, or both, to safely operate a motor vehicle due to alcohol, drugs, or both.
• The lesser offense of “Driving While Ability Impaired” (DWAI) (still a misdemeanor offense) requires only that the alcohol, drugs, or both you have in your system is impairing your ability to safely operate a motor vehicle to the “slightest degree.”

Unlike alcohol, legislators in Colorado did not create a “per se” offense based only on the level of THC in your blood. They did, however, create a “permissible inference”, which allows jurors to infer your guilt if you have 5 nanograms or more of Delta-9 THC (marijuana’s active psychoactive component) in your blood as shown by a blood test. This is not required, however, as the jury can also choose not make this inference of guilt, if the other facts of the case lead them to that conclusion. Conversely, if your level is below 5 nanograms, the jury can choose to infer you were not driving under the influence.

So, when are you legally too high to be driving? First, before I go there, don’t put yourself or others in a potentially dangerous situation by driving a motor vehicle while, or close to when you have ingested or inhaled marijuana. While the science is still evolving, driving a motor vehicle is not like playing a video game, and generally speaking, getting high does not make you a better driver. Even if you believe you feel "OK" to drive, you don’t want to find yourself facing a DUI allegation and put in the position of convincing a police officer, prosecutor, or jury that you're right. It’s not worth it, get a ride or wait it out.    

If you do, however, find yourself charged with a DUI, for suspicion of being under the influence of marijuana, your THC level is one significant factor prosecutors and jurors will rely on, in determining your guilt or innocence. However, what your THC level can actually tell us about when you smoked marijuana, how much you smoked, how marijuana affects you personally, and whether you were still experiencing the intoxicating effects of the drug at the time of driving is sorely lacking. Using an expert to help explain this to a jury can be useful in some cases. If you refuse to take a blood test, you can still be prosecuted based on other facts and evidence available to the officer. (Note: like alcohol, refusing to submit to a blood test, assuming an officer is in the right and has probable cause to suspect you are under the influence of marijuana while driving, will likely result in some revocation of your driving privileges, and the fact of your refusal can be used against you by the prosecutor at trial)

Whether you are arrested, charged, and ultimately convicted of a DUI due to marijuana use, can ultimately come down to the police officer involved and his or her claimed observations of you. The officer’s behavior, credibility, knowledge, and thoroughness can impact how strong the evidence is against you. Police officers will use their observations of the following to make their case:

• marijuana in your possession,
• your driving behavior,
• your appearance,
• any statements you make admitting to marijuana use (which CAN and WILL be used against you), and
• your performance during roadside maneuvers (if you choose to participate in them - YES, these are 100% voluntary).

The standardized roadside tests, however, were developed based on studies involving alcohol intoxication, and are not designed with THC in mind. Aspects of the roadside test's meaningfulness can be challenged in cases involving marijuana. Occasionally, a more specific (also voluntary) set of field tests are administered by an officer who is called a Drug Recognition Expert (DRE) and can be used by the prosecution to demonstrate to a jury that you were high on marijuana. These officers, however, while taught to look for and document certain signs of drug use, are not themselves scientists and the extent of their expertise can sometimes be challenged.

The bottom line is, the blood doesn’t say it all. Instead, all of the above factors, and the facts in your specific case, need to be looked at closely by a Colorado DUI lawyer. An experienced DUI lawyer can evaluate the strength of your case, determine whether experts should be consulted, and ultimately advise you on your best course of action.

Call GOLD LAW 720-772-8647 for a free consultation on your DUI Marijuana case today!