Yes, you can be charged with DUID—Driving Under the Influence of Drugs—if you are suspected of having consumed marijuana before getting behind the wheel of a car. However, unlike a DUI for alcohol, there is no legal statute in Virginia that sets a level of marijuana consumption that violates the law. That means that it is up to the discretion of law enforcement to determine if your driving has been impaired by marijuana. These cases are notoriously slippery, so it is very important that you talk to a DUI defense lawyer who has experience handling marijuana charges.
Charges You Face if You Are Caught Smoking Weed and Driving
Possession of marijuana is still illegal in Virginia, so if you are pulled over, and police find unsmoked marijuana or burnt residue in the vehicle, you could be charged with drug possession, which is a Class 1 misdemeanor. In addition, if the officer believes that you were under the influence of the drug while you were driving, you could also be charged with a DUID. There is no roadside test for marijuana use similar to a drunk driving Breathalyzer, so the officer can charge you based solely on their observations.
You might be asked to submit to a blood test to determine if you have THC in your system at the station, but the results cannot be used like a blood alcohol content (BAC) test would be used because there is no legally established level of THC that is considered to cause impairment. In other words, while a BAC of .08 or higher would be accepted as evidence that you were driving while impaired by alcohol, there is no equivalent for the presence of THC in the blood. A judge could accept testimony from a toxicologist as to the likelihood of impairment based on the level of THC, but there are no legal or even medical standards for this determination.
What Are DUID Charges Based on?
Ultimately, a DUID case must present evidence that the driver was impaired by marijuana. Evidence presented in court could include:
- Police testimony. In order for a police officer to pull over a driver on suspicion of impaired driving, they must witness erratic driving, such as swerving in and out of a lane, driving very slowly, running a stop sign, or some other traffic offense. Once the suspect is pulled over, the officer must witness conduct or speech that is consistent with the consumption of marijuana products.
- Physical evidence. If the officer smells marijuana on the suspect or in the vehicle or sees “open containers,” in this case, drugs or drug paraphernalia, they could arrest the driver on suspicion of driving under the influence of drugs.
- Blood evidence. If the suspect is compelled to provide a blood sample for testing, and THC is detected in the blood—again, regardless of the amount—a judge could accept this as evidence of impairment.
- Statements from the accused. If the driver admits to having consumed marijuana at some point before driving, police and prosecutors could use their statement as evidence of impairment.
Given the lack of legal guidance regarding driving under the influence of marijuana, police, prosecutors, and judges have many opportunities to violate the rights of a suspect. It is vital that you cooperate with law enforcement, but call a lawyer before admitting to anything.
An Experienced Defense Attorney Can Make All the Difference
The Virginia General Assembly is scheduled to consider proposals from the Virginia Crime Commission regarding driving under the influence of drugs, but for now, this area of the law is wide open to a variety of legal issues. A person charged with DUI for marijuana could have several viable defenses, but it will take the knowledge and experience of a DUI defense lawyer to build the best defense.
If you have been charged with DUID for marijuana, you are facing a serious criminal charge. Talk to a lawyer who understands the consequences and your options for the best possible outcome—talk to James E. Short. Contact us online or call our office at 757-410-5042.