Marijuana-Related DUI and DWAI

Since the passage of Amendment 64, which legalized possession of up to an ounce of marijuana for adults ages 21 and older, Colorado law enforcement and legislature have struggled with policing marijuana use while driving.

Although marijuana use is legal for both medicinal and recreational purposes in Colorado, driving while under the influence of marijuana is illegal and can result in serious penalties including large fines and jail time.

According to research conducted by the National Highway Traffic Safety Administration, any amount of cannabis use can impair a driver’s ability to operate their vehicle safety. Drivers can experience the following side effects of marijuana use:

• Decreased reaction time
• Difficulty navigating roadways
• Reduced attention span
• Impaired cognitive functions
• Other impaired functions, such as planning a safe route, decision-making, and evaluation of risks

Despite these findings, according to a 2016 study conducted by the Colorado Department of Transportation, 55% of marijuana users believed it was safe to drive while under the influence. That same year, more than 17% of all DUI arrests by Colorado state police involved marijuana use.

According to Colorado law, any driver with 5 nanograms of delta-9-THC, the main psychoactive chemical in cannabis, per milliliter of blood, can be prosecuted for DUI.

The Colorado legislature and law enforcement agencies have failed to find an accurate and practical way of testing for THC roadside. Currently, the only way to test for the presence of marijuana in an individual’s system is via a blood test administered at the police station.

THC testing is controversial for several reasons. As a fat-soluble substance, THC can remain present in your bloodstream for days or even weeks after use. Also, experts have been unable to scientifically quantify the amount of impairment caused by 5 nanograms of THC because the effects of marijuana use vary greatly from person to person depending on several factors such as weight and history of usage. Critics also argue that THC blood tests unfairly penalize those who have used marijuana either medicinally or legally as a recreational drug.

Because of the lack of reliable objective roadside testing, in practice police officers base arrests on observable impairment such as erratic driving, affected speech, or the smell of marijuana.

To help curtail the occurrence of motorists who drive under the influence of marijuana, Colorado law places strict penalties and fines for offenders.

There are two possible marijuana-related driving charges: DUI and DWAI. Both are typically misdemeanor charges, unless prior convictions or other circumstances cause the charge to be increased to a felony. In Colorado, DUI and DWAI are treated the same under one statute, regardless if the charges stem from marijuana, alcohol, or both.

Under Colorado Revised Statute 42-4-1301 a motorist is guilty of a marijuana DUI if, as a result of marijuana use, they are substantially incapable, whether mentally or physically, to operate their vehicle safely.

The penalties for (DUI) of marijuana are:

First conviction:

• 5 days to 1 year in jail
• $600 – $1,000 fine
• Maximum 9-month driver’s license suspension
• Up to 96 hours of community service

Second conviction:

• 10 days to 1 year in jail
• $600 – $1,500 fine
• Maximum 1-year driver’s license suspension
• Up to 120 hours of community service
• 2 years of an ignition interlock device after your license is reinstated

Third conviction:

• 60 days to 1 year in jail (jail alternatives, such as home detention are not permitted for the 60-day minimum, although work release is permissible)
• $600 – $1,500 fine
• Maximum 2-year driver’s license suspension
• 2 years of an ignition interlock device after your license is reinstated

Driving while ability impaired, or DWAI, is also prohibited under C.R.S. 42-4-1301. Unlike DUI, a driver is guilty of DWAI when you are less able, either mentally or physically, to operate your vehicle even to the slightest degree.

The penalties for DWAI of marijuana are:

First conviction:

• Jail time ranging from 2 to 180 days
• $200 – $500 fine
• Up to 2 days of community service
• 8 points on your driver’s record

Second and third conviction:

• Mandatory 10 days in jail and can include up to a 1-year sentence
• $600 – $1,500 fine
• Up to 120 hours of community service
• 8 points on your driver’s record

For both DUI and DWAI, after 4 or more offenses, or if you have certain aggravating circumstances such as prior convictions on your record, you could be charged with a felony and subject to up to 2 years in prison, 2 years of probation, and up to a $500,000 fine.

Serious penalties also occur for those motorists who refuse to take a blood test for the presence of THC in their bloodstream. Regardless of whether a criminal conviction occurs, simple refusal of the blood test results in the following administrative penalties:

• 2 years of a mandatory ignition interlock system in your vehicle
• Level 2 alcohol and therapy education courses

Under Colorado law, it is also illegal to use marijuana on a public roadway. To that end, Colorado’s open container law applies much like for the use of alcohol: marijuana can’t be present in the passenger area of the vehicle, in an open container, in a container with a broken seal, or present in any manner that indicates it was being used inside the car.

At The Moorhead Law Group, we understand that a marijuana-related conviction can ruin your future. To protect yourself from the devastating consequences of marijuana DUI or DWAI, contact a Boulder DUI lawyer at (303) 586-6912 today.

https://codot.gov/safety/impaired-driving
https://www.npr.org/sections/health-shots/2017/07/30/523004450/scientists-still-seek-a-reliable-dui-test-for-marijuana
https://www.denverpost.com/2017/11/05/colorado-prescription-opioid-heroin-epidemic-lawmakers/