Recently there has been a real push for marijuana legalization across the country. One of the issues that comes with such a sweeping change in the law that is rarely discussed is what kind of impact marijuana legalization would have on DUI laws.
If marijuana legalization really gains any traction, in my opinion, there are two issues that need to be resolved when it comes to marijuana DUI cases. The first question is whether there would be a legal limit on marijuana, and second, whether both active and inactive levels of marijuana would be criminalized.
The first question to determine is what the legal limit would be. In the United States there are several states that have enacted per se laws for marijuana DUI cases, which means that they have established a legal limit. For example, in Nevada and Ohio there is a limit of 2 nanograms. In other words, that’s your equivalent of a .08 alcohol level for alcohol-related DUI charges. Interestingly, based on the research I’ve done, Nevada’s strict per se laws caused a 76% increase in marijuana DUI arrests, while the enactment of these laws in Ohio caused a 4.8% decrease.
The second issue to be determined is whether both active THC and the inactive metabolite of THC will be criminalized. Those states that have DUI laws per se have also created a higher level of inactive THC metabolite, keeping in mind that the longer it stays in the system, the less impact it will have on an individual’s impairment. For example, both Nevada and Ohio have a limit of 10 nanograms of the inactive metabolite.
In my opinion, if these issues are not determined, this area of the law will continue to be very murky when it comes to DUI. In fact, every time I represent someone charged with a marijuana DUI, it really does seem that different prosecutors seem to have different thoughts about where marijuana harms the individual. The prosecution usually hires a toxicologist to testify about the effects of marijuana on the human body, at what levels it is generally considered harmful according to different studies. Because of the ambiguities and all the different scientific theories out there, the Defense also usually employs an expert to counter what the Prosecution’s expert is saying.
If the legalization of marijuana happens and the two issues I discussed are considered, then this area of the law would be much more concrete and help people understand the impairment that marijuana can cause to the ability to operate a vehicle.