With the legalization of recreational marijuana gaining inroads in many U.S. states, law enforcement officials and state legislators continue to face challenges when attempting to enforce drunk and drugged driving laws. Unlike other illicit substances and alcohol, THC—the main metabolic byproduct of marijuana—can remain in users' systems for days or even weeks after use.
This means that someone who is involved in a car crash that results in bodily injury or death may face felony DUI charges if blood testing reveals the presence of THC, even in states where marijuana is legal. For those involved in such crashes in states where marijuana remains illegal, such charges could potentially be upgraded to involuntary manslaughter.
Read on to learn more about how drugged drivers are treated under state criminal statutes, as well as some defenses that may be available if you're charged with drugged driving for an accident or incident that took place days after you last used marijuana.
What Constitutes Drugged Driving Under State Laws?
Each state's legislature sets forth the legal standards for drunk and drugged driving—both driving under the influence (DUI) and driving while intoxicated (DWI). In states that have legalized marijuana, these definitions have frequently been updated to include a certain THC concentration in the blood, rather than just the presence of even trace amounts of THC.
And because it can be tough for officers to determine marijuana impairment when pulling someone over, some companies have begun to develop cheek swabs or other field testing kits that are said to alert officers to recent marijuana use. These types of kits can help officers differentiate between someone who used marijuana a day or two ago (but would still test positive on a drug test) with those who consumed marijuana just before getting behind the wheel, potentially placing them in DUI or DWI territory.
The drugged driving analysis becomes a bit different when officers are responding not to reports of intoxication or impairment behind the wheel but to an accident. In these situations, a positive drug test may be enough to establish guilt, even if the defendant argues that he or she had not used marijuana for hours or days before the crash.
What Are Some Drugged Driving Defenses?
If you've been charged with a DUI or DWI because of a positive THC test, there are a couple of legal defenses that may be available.
First, you may be able to challenge the admissibility of the drug test or even the legality of the stop. If you were simply pulled over and were not involved in an accident, an officer must have probable cause to order you to take a field sobriety test or to perform a drug test on you. WIthout probable cause, any "fruits of the search" must be excluded from the evidence presented in a criminal trial, which means your blood test will be inadmissible.
If you were involved in an accident and took a drug test at the scene (or shortly thereafter), you may also be able to challenge the accuracy of this test by attacking the test itself or inquiring into the chain of custody. If, at any time after your blood was drawn, the prosecutor is unable to identify where this sample was sent or who had possession of it, any results derived from this blood sample may not accurately reflect your condition at the time. Chain-of-custody challenges can be successful if the police department doesn't have good internal controls on how drug tests are handled.
In other cases, you may be able to point to a certain brand of drug test's poor accuracy rates or argue that the test wasn't promptly read, which could potentially skew any results. Depending on the circumstances of your case, these collateral attacks could be enough to prevent a conviction.
Visit websites of criminal law firms to read more about how to handle a DWI charge.Share
26 December 2018
My son and a group of his friends got in some trouble for trespassing and were arrested. Every one of the boys that were there were charged with trespassing, criminal mischief and vandalism. I contacted all of the other boys' parents and we got together to discuss the situation. After hearing the boys' stories about what happened that day, we knew that we had to hire an attorney to get the boys out of some of the trouble they were in. I have been working on my blog to help other parents that are struggling with the legal system prosecuting their kids for things that they may not have done.