Driving ‘High’ On Medical Marijuana: Facts You Must Know

Across America these days there is much controversy over Marijuana DUI Laws (Driving Under Influence After Using Legal Marijuana). Although many states legalized marijuana/cannabis substances for medical use or recreational use it is still against the law to drive while ‘high’ on medical marijuana. This is true despite the fact you may have a prescription to use it.

Driving under the influence of cannabis/weed, pills, heroin, cocaine or any form of narcotic controlled substances is illegal in all 50 states, depending if law enforcement officers have specialized training to deal with drug-impaired drivers. Controversy swirls like a thunderstorm over the legality of existing marijuana laws, and whether the law can credibly prove a certain amount of ingested prescribed marijuana actually caused a person’s impairment to the point the impairment reaches a state’s threshold of intoxication.

Law enforcement agencies declare there has been an increase in vehicle fatalities as result of a driver impaired after using legally issued marijuana for health conditions.

The facts surrounding use of marijuana while driving triggered a flood of criminal attorneys to focus on that particular area of DUI, due to recent research showing the difficulty of measuring the exact amount of marijuana in a person’s system to declare them legally intoxicated. Experts conclude although a person can be arrested for Marijuana DUI, there are loopholes people should know about that can work in their favor against the law regarding Marijuana DUI.

For example, new research from AAA Foundation for Traffic Safety indicates how difficult to measure how much marijuana use by drivers becomes dangerous, which means, how ‘high is too ‘high’ – to drive. And thus far, there’s no developed breathalyzer test to make such a determination.

Actually what helps an officer to decide if a person was driving under the influence of legal or illegal marijuana or other drugs is to have person’s blood drawn, and have the blood tested to determine how much drugs are in the person’s system.

As noted, states have at least 0.08 as the legal number to declare a person legally intoxicated by alcohol. Yet in some states there’s no set legal limit for Marijuana DUI, though, most states have “per se” DUI laws. That means any amount of drugs or alcohol detected in a person’s system makes them automatically guilty of driving under the influence of drugs or alcohol.

“There is no reliable number with meaningful value in terms of predicting impairment,” said AAA Traffic Safety Director Jake Nelson, in an interview with a Washington Post reporter.

So far, 20 states approved laws on marijuana use. Of these 20 states, at least 12 states made it illegal for any use of drugs by people operating a vehicle – while six states set a legal limit similar to the .08 alcohol level. If a driver using legal marijuana tests above that level, they will most likely be convicted of DUI. Among states with legal limits for marijuana found in a person’s system, Colorado is the most lenient.

Unlike Blood Alcohol Content (BAC), THC blood levels are usually found in the system of consistent marijuana users. THC don’t always correlate with a state’s threshold of legal intoxication – primarily because cannabis metabolites can remain in a person’s fat cells even after a person stops using marijuana. THC is the abbreviation for the medical term “Tetra-Hydro-Cannabinol.” THC is a chemical euphoric that induces the “high” that marijuana users feel.

Florida-based DUI attorney Tom Hudson who specializes in legal or illegal Marijuana DUI defense cases, writes the following on his blog about the difference between Carboxy-THC and Delta 9-THC, and why lawyers must thoroughly educate themselves with more than just alcohol metabolism. “Did you know that many forensic labs don’t test for Delta-9 THC, the active ingredient in marijuana,” Hudson asks.

Hudson further explained, “Knowing how the body metabolizes THC is essential to defending cases of ‘stoned’ driving.” Hudson went on to say in his article that many lawyers handling DUI cases have “Simply not learned the biochemical facts of life about marijuana and driving.” Hudson, a Board Certified DUI Specialist with formal training as an NHTSA Drug Recognition Evaluation expert, breaks down the components between Carboxy-THC and Delta 9-THC:

“When marijuana is smoked, the active ingredient is Delta 9 THC. Within a couple of hours, the body has converted that Delta 9 to something called Hydroxy-THC. Hydroxy-THC can also impair your driving, and is then converted to Carboxy-THC within another hour or two. The thing about Carboxy-THC is that it has no impairing effect on your ability to drive! So why do they test for it? Because it stays in your system for hours, days or even weeks.”

Presence of Carboxy-THC says nothing about your ability to drive

“But its presence says nothing about your ability to drive.”

The chart below shows how Delta 9 THC is converted to Hydroxy-THC and then to Carboxy-THC:

THC conversion chart.
Conversion of THC. Image courtesy Tom Hudson

So if a citizen is charged with driving while high, but the lab finds only Carboxy-THC, it means that the driver wasn’t impaired! There are a lot of lawyers over the years who have allowed their clients to plead guilty just because they saw “THC” on the lab report and didn’t realize that carboxyl THC isn’t the same as the stuff that gets you high.

In Florida, there is even case law which establishes that the presence of Carboxy-THC is not even admissible before the jury. But many lawyers do not know that.

Although DUI laws vary by state, the prosecutor’s burden is to prove impairment regardless if the driver is proven to have a large amount of marijuana in their system. Favorable to the courts involves police testimony indicating a person exhibited erratic behavior, affected speech, or the arresting officer testifies smelling marijuana. These are examples of guilty evidence. Even so, legal advocates insist that in order for states to secure a fair conviction, all states should implement legal threshold limits to prove a person is guilty of driving high on legal or illegal marijuana.

AAA Foundation officials see things differently.

The Foundation recommended in its report the need for states to eliminate setting legal limits for THC often found in a person’s bloodstream. Such limits, the report pointed out, can lead to wrongful convictions due to THC levels remaining in a person’s system for up to a month or more. AAA also indicates it doesn’t make a difference if the ingested marijuana or other form of drugs were legal or illegal. Instead of having legal limits for THC levels, AAA officials says law enforcement agencies should send their officers through at least 72 hours of training followed by field testing to certify officers as a Drug Recognition Expert (DRE).

“It shifts the burden of evidence from prosecution to the defense,” AAA Director Nelson said in the Washington Post article. “If you can prove you didn’t (use pot), presumably while driving; you can avoid conviction, but if you can’t beat the case, then you’re going to jail,” Nelson explained.

In response to states with “per se” laws, including the standards used to charge someone with marijuana DUI without taking into consideration that the reason a person may still have Carboxy-THC levels in their blood stream, several days or weeks, after marijuana was used, AAA Director Nelson concludes, “Those Laws on the books are bad news.”

Get The Facts About Legal Or Illegal Drug Driving Laws at this link.


Clarence Walker
As an analyst and researcher for the PI industry and a business consultant, Clarence Walker is a veteran writer, crime reporter and investigative journalist. He began his writing career with New York-based True Crime Magazines in Houston Texas in 1983, publishing more than 300 feature stories. He wrote for the Houston Chronicle (This Week Neighborhood News and Op-Eds) including freelancing for Houston Forward Times.Working as a paralegal for a reputable law firm, he wrote for National Law Journal, a publication devoted to legal issues and major court decisions. As a journalist writing for internet publishers, Walker's work can be found at American Mafia.com, Gangster Inc., Drug War Chronicle, Drug War101 and Alternet.His latest expansion is to News Break.Six of Walker's crime articles were re-published into a paperback series published by Pinnacle Books. One book titled: Crimes Of The Rich And Famous, edited by Rose Mandelsburg, garnered considerable favorable ratings. Gale Publisher also re-published a story into its paperback series that he wrote about the Mob: Is the Mafia Still a Force in America?Meanwhile this dedicated journalist wrote criminal justice issues and crime pieces for John Walsh's America's Most Wanted Crime Magazine, a companion to Walsh blockbuster AMW show. If not working PI cases and providing business intelligence to business owners, Walker operates a writing service for clients, then serves as a crime historian guest for the Houston-based Channel 11TV show called the "Cold Case Murder Series" hosted by reporter Jeff McShan.At NewsBlaze, Clarence Walker expands his writing abilities to include politics, human interest and world events.Clarence Walker can be reached at: [email protected]