Columns Is Driving Under the Influence of Marijuana a DUI?

If marijuana possession is legalized in your state, can you receive a DUI for driving after you've had a few hits? Criminal prosecutors in Seattle are under the impression that a sizable number of people are confused about the law and believe that driving under the influence of marijuana is legal. Perusing reader comments on articles covering this issue on popular news sites, including several drug and DUI-DWI related threads in forums, this sentiment seems to be accurate. With a growing number of states legalizing marijuana, campaigns are coming to educate the public that DUI crimes ("Driving Under the Influence") include impairment as a result drug usage and are not limited to alcohol.

Washington State's New Marijuana Law

Washington Initiative I-502, which was passed by general ballot in November 2012, legalized small amounts of marijuana for adults who are 21 years old and over. It taxes the purchases and uses the proceeds for healthcare and substance-abuse prevention and educational programs. State agencies regulate the number of stores per county, hours of operation, quality control and other aspects of operation. Stores may not be located within 1,000 feet from a school and marijuana may not be displayed in a manner that is visible to the public.

DUI Convictions Can Be Difficult to Make

An unscientific poll taken by KIRO TV in Seattle resulted in 3 out of 10 people believing that driving while high is not a crime. DUI prosecutor, Megan Hastings, stated that there is a common misconception by the public that if your use of marijuana is legal then it is similarly acceptable to drive after use. Hastings and Miriam Norman, also a Seattle prosecutor, lamented that it can be a difficult battle to convince juries in DUI cases to convict, even prior to the passage of I-502. Even in cases where a driver was clearly impaired and it appeared that the prosecution had met its burden of proof, a surprising number of juries still did not find the driver guilty.

Drive High, Get a DUI

marijuana-roll.jpgKIRO also reported that the Seattle Police Department has been providing an aggressive law enforcement training program along with measures to increase public awareness. A person's Tetrahydrocannabinol level ("THC" level), which indicates a level of marijuana usage, may be used as evidence of a "driving under the influence" crime. But the absolute level is not determinative for a conviction, which may also be justified simply by evidence of impaired driving as a result of marijuana usage. The Washington State Patrol is considering a revision to their driving under the influence slogan from "Drive Hammered, Get Nailed" to "Drive High Get a DUI." The original slogan, might be misleading to some since a driver does not need to be drunk in order to be impaired while driving.

For convenience, the following constitutes the elements of a DUI offense in Washington state and represents a portion of the Washington State's DUI Law, RCW 46.61.502, Driving under the influence. While state law varies and must be consulted before coming to any firm conclusions about the law, driving under the influence laws in most states are generally concerned with road safety and driver impairment. Offenses would include being significantly affected by drugs, in addition to and including marijuana.

(1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state:​
(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or​
(b) The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or​
(c) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or​
(d) While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.​
  1. Washington
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Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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