Stoned or Drunk, Driving Isn’t an Option

Posted December 8, 2011 in Criminal Law by David Baarlaer

marijuana, driving stoned, dui, legal pot, medical marijuana

A recent study shows that medical-use marijuana may be making our roads and highways safer. Whether that’s true or not we may never know, and, at least from a legal standpoint, it really doesn’t matter.

  • A new study shows a decline in traffic-relate deaths in states with legalized marijuana
  • No matter your opinion on whether pot should or shouldn’t be legal, driving while high is just as illegal as driving while drunk
  • Penalties for a marijuana DUI may be harsher than for an alcohol-related DUI

Pot Makes the Road Safer?

Researchers just came out with one of those studies that make you scratch your head and say, “What?” According to them, there has been a drastic decrease in traffic-related deaths in states where marijuana is legal to smoke. Specifically, they found that, on average, there was about a 9 percent drop in these deaths in the states allowing medical marijuana.

The intriguing question is, “Why?” No one knows the answer, of course. According Daniel Rees, one of the researchers on the study, some speculate that it’s “safer to drive under the influence of marijuana” than it is to drive drunk. Drivers high on marijuana, he explains, “drive slower and don’t take as many risks” as drunk drivers.

Another possible reason, according to Rees, is that marijuana smokers “don’t go out as much” as those who drink alcohol. So, getting stoned at home or at a friend’s house and staying put leads to fewer traffic accidents. That’s a littler more plausible than the “marijuana’s safer” theory, don’t you think?

The “stay-at-home” theory also jives with a recent CDC report showing a drastic decrease in alcohol-DUI incidents, even though people aren’t necessarily drinking less. The decrease, it’s surmised, is because people are drinking at or near their homes and removing the risks of DUIs.

“Why?” Doesn’t Really Matter, Legally Speaking

Whether stoned or drunk, you run the risk of getting a DUI/DWI, plain and simple. In practically every state, “under the influence” or “while intoxicated” covers more than alcohol. These phrases cover:

  1. Legal drugs, including prescription medications and marijuana (in states where it’s legal to use)
  2. Illegal drugs, such as heroine, methamphetamine and scores of other controlled substances

A Little or A Lot, Pot Can Get You Grounded

Some states, like Michigan and Utah, have zero tolerance laws, meaning drivers with any detectable trace of marijuana in their systems may face DUI charges. No ifs, ands or buts.

In some of these states, medical marijuana is excluded. So, for example, in Arizona and a few other states with zero tolerance laws, authorized medical marijuana users may drive after smoking marijuana and avoid the zero tolerance law. But, if the marijuana has made them “impaired” to the point they can’t operate their cars safely, they may still face DUI or other charges, like reckless driving

A few states, such as Ohio, set a limit on how much marijuana may be present in any driver’s blood or urine, similar to the blood alcohol content (BAC) used for alcohol-related DUI cases. Again,  in states like this, drivers who are legally allowed to use medical marijuana may still face DUI charges if they exceed the legal limit, though.

The take away is this: You can face DUI and other charges for driving stoned, even if you’re legally allowed to use marijuana.

Driving Stoned May Be Worse (Legally) than Driving Drunk

jon Katz

Marijuana-related DUIs present special legal problems, for both the driver and the prosecution. Jon Katz, a criminal defense lawyer practicing in Maryland, Virginia and Washington, DC., explains that, “Proving driving under the influence of marijuana is difficult. Marijuana can stay in the bloodstream for several weeks. Marijuana’s presence in the blood does not prove recent use of marijuana nor driving under the influence of marijuana.”

So, say you smoke a joint on Sunday. Driving home from work that next Tuesday, you reach to answer your cell phone and weave your car. An officer pulls you over for erratic driving. Right or wrong, he thinks he smells pot in your car or on your clothing, or thinks he sees a remnant of joint in your ashtray . The next thing you know you’re under arrest for DUI, even though you weren’t high at the time you were pulled over.

It’s time to call a good attorney. On top of the proof issues to deal with, says Mr. Katz, you have “Fourth Amendment rights against unreasonable stops and searches and seizures,” that may have been violated, lowering the chances of a conviction.

Your Troubles Are Compounded

Penalties for a typical alcohol-related DUI conviction may include a fine, maybe a few days in jail, and more likely than not, suspension of your driver’s license or restricted driving privileges. Generally, the same is true for a marijuana-related DUI, plus some possible extras.

For example, in states where medical marijuana isn’t legal, drivers with marijuana in their systems or in their cars likely will face criminal charges for possessing and/or using marijuana.

Even in states where medical marijuana is legal, drivers may face drug-related charges depending on how much marijuana they have in their possession. For instance, under California’s law, authorized users may possess the amount of marijuana “reasonably related” to their “current medical needs.” A driver may have trouble convincing the police, prosecutors and a jury that the one-pound bag of pot in his car was “reasonably related” to his medical needs! A large amount of drugs, including marijuana, is often used by prosecutors as evidence or proof of the intent to sell or distribute the drugs, which usually carries a much stiffer criminal sentence.

The Best Choice? Neither!

Given the choice between driving drunk and driving stoned, the decision should be obvious: Don’t do either! Avoid the legal problems and get a designated driver, call a cab or find some place to sleep it off.

If you find yourself behind the wheel after drinking or smoking a little bit, and you honestly think you’re capable of driving safely, you can take steps to avoid trouble:

  1. Drive within the speed limit
  2. Don’t drive distracted. Texting or talking on the phone may cause you to drive erratically
  3. Know what to do and how to handle yourself if you’re pulled over
  4. Call an attorney as soon as possible if you’re arrested for DUI

Dave Baarlaer is a news reporter for

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