Six Simple Rules for Marijuana and Driving

  1. It is illegal to drive while influenced by marijuana.
  2. For safe driving, wait at least 4 hours since you last smoked/vaped before driving.
  3. For edibles, wait at least 12 hours.
  4. Tell the officer that your attorney told you not to submit to voluntary roadside maneuvers.
  5. Agree to do the blood test.
  6. Do not argue about your rights with the officer, do it in court with a lawyer.

In Colorado, a person can be found guilty of DUI or DWAI if s/he drives vehicle after voluntarily consuming alcohol, drugs or a combination of the two. All states have a form of the DUI statute, but very few also have the lesser included offense of DWAI. This charges makes it much easier for the prosecution to convict a person of an intoxicated driving offense. The difference in the charges is a matter of degree of impairment, but the legal and punitive consequences are largely the same.

DUI means consumption “affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.” CRS §42-14-1301(1)(f). If there is a blood or breath test showing BAC of 0.08 or more, the jury may infer that the driver is DUI.

DWAI means consumption “affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.” CRS §42-14-1301(1)(g). If there is a blood or breath test showing BAC of 0.05 to 0.079, then the jury may infer that the driver is DWAI.

DUI PER SE - “It is a misdemeanor for any person to drive a motor vehicle or vehicle when the person’s BAC is 0.08 or more at the time of driving or within two hours after driving.” CRS § 42-4-1301(2)(a). This offense does not require any evidence of bad driving or inability to drive. The minimum requirement is that the person drove a vehicle and a test conducted within two hours shows BAC at 0.08 or higher. Evidence of drinking after driving is an affirmative defense to this charge.

In a trial, the jury would be given the option to find a person not guilty of all of these offenses, guilty of either DUI or DWAI, and/or guilty of DUI PER SE. Many jurors believe that consumption of any amount of an intoxicant affects driving to the slightest degree. If a driver admits to any level of impairment by drugs and/or alcohol, s/he has probably confessed to DWAI.

People under the age of 21 years are guilty of a Underage Drinking and Driving if their BAC is 0.02 – 0.05 within two hours of driving. CRS §42-14-1301(2)(a.5)(I) This is a lesser of DUI and DWAI. A person under 21 can also be charged with DUI and DWAI.

For people that consume marijuana, either recreationally or medically, new laws define what a blood test result means. If a valid test shows that one milliliter of blood contains five nanograms or more of Delta 9-Tetrahydrocannibinol, a jury will be instructed that it MAY infer that the person was under the influence of drugs. CRS § 42-4-1301(6)(a)(IV). Medical marijuana patients do not have special rules for DUI.

An experienced DUI defense attorney can present evidence that the permissible inference should not apply in a specific case. Many people would regularly consume marijuana will have residual levels above 5 nanograms for several days after last consumption. These people may be above 5 nanograms and be completely sober.

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Express Consent

  • A person who drives a motor vehicle anywhere in Colorado is required to cooperate in the taking and completing of any and all tests of the person's breath and blood when requested by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI, or UDD. Id. § 42-4-1301.1(2)(a)(I). This applies even if more than two hours has passed since the last driving. This does not apply to tests at the roadside prior to arrest like Standardized Field Sobriety Tests (voluntary roadside maneuvers) nor the preliminary screening test (portable breath test or PBT).
  • The Department of Revenue Division of Motor Vehicles (DMV) will revoke the license of a driver if a test shows a blood alcohol content of 0.08 or greater. The revocation is 9 months for a first offense, 12 months for a second offense and may be denied a license forever for a third offense. Drivers may be allowed an interlock license after 1 month of no driving on a first offense. Drivers may be allowed an interlock license after 12 months of no driving on a second or subsequent offense.
  • The DMV will revoke the license of a person for refusing to take or complete a requested test. The revocation is one year for a first refusal, two years for a second refusal of test and three years for a third or subsequent refusal. Id. § 42-2-126(3)(c)(I). A person may be allowed to get an interlock license after 2 months of no driving following a refusal.
  • A person is allowed to request and receive a hearing to determine if the officer had reason to stop the driver and reason to request a test. At the hearing, a person may request the presence of the arresting officer, subpoena people or materials to the hearing and to present evidence at the hearing. If the hearing officer finds against the driver, an appeal may be made to the District Court in the County where the driver lives.
  • If a person refuses to take or to complete any test or tests and such person subsequently stands trial for DUI or DWAI, the refusal to take or to complete, or to cooperate with the completing of, any test or tests shall be admissible into evidence at the trial. Id. § 42-4-1301(6)(a)(III)(d).
  • Neither the results of such preliminary screening test (PBT or portable breath test) nor the fact that the person refused such test shall be used in any court action except in a hearing outside of the presence of a jury, when such hearing is held to determine if a law enforcement officer had probable cause to believe that the driver committed a violation of this section. The results of such preliminary screening test shall be made available to the driver or the driver's attorney on request. Id. § 42-4-1301 (6)(h)(i)(III).
  • Generally, an arrested person has no right to consult with an attorney before taking a blood or breath test. Drake v. Colorado Dept. of Revenue, Motor Vehicle Div., 674 P.2d 359 (1984).
  • When an arresting officer invokes the sanctions of the Express Consent law by requesting the driver to submit to chemical testing, the officer has a corresponding duty to comply with the driver's request for a blood test. People v. Gillett, 629 P.2d 613 (1981).

Penalties

  • First offense (DUI, DUI per se) - imprisonment in the county jail for a mandatory minimum of five days but no more than one year; fine of at least six hundred dollars, but no more than one thousand dollars; at least forty-eight hours but no more than ninety-six hours of useful public service; the court may impose a period of probation that shall not exceed two years, which probation may include any conditions permitted by law. Id. § 42-4-1307(3). The minimum jail sentence can be suspended if the driver submits to alcohol/drug treatment as ordered by the court.
  • First offense (DWAI) - imprisonment in the county jail for a mandatory minimum of two days but no more than one hundred eighty days; fine of at least two hundred dollars but no more than five hundred dollars; at least twenty-four hours but no more than forty-eight hours of useful public service; the court may impose a period of probation that shall not exceed two years, which probation may include any conditions permitted by law. Id. § 42-4-1307(4). The minimum jail sentence can be suspended if the driver submits to alcohol/drug treatment as ordered by the court.
  • Second offense - imprisonment in the county jail for a mandatory minimum ten consecutive days but no more than one year; fine of at least six hundred dollars but no more than one thousand five hundred dollars; at least forty-eight hours but no more than one hundred twenty hours of useful public service; a period of probation of at least two years. Id. § 42-4-1307(5). If the second offense occurs within 5 years of the first offense, then the minimum jail must be served in jail. If not, then jail alternatives may be substituted (in-home detention, work crew, day reporting).
  • Third and subsequent offense - imprisonment in the county jail for a mandatory minimum of sixty consecutive days but no more than one year; mandatory participation in a court-ordered alcohol and drug driving safety education or treatment program; fine of at least six hundred dollars but no more than one thousand five hundred dollars; at least forty-eight hours but no more than one hundred twenty hours of useful public service; a period of probation of at least two years. Id. § 42-4-1307(6).

Sobriety Checkpoints

Sobriety checkpoints are permissible in Colorado under both the state and federal Constitution. All sobriety checkpoints must give notice of the checkpoint sufficiently in advance of the checkpoint so that a person can avoid it. Watch for signs that provide this information. If you seek to avoid a checkpoint, you should be careful not to violate any other laws while doing so. If you violate any traffic law (e.g. turn signal, illegal u-turn) while avoiding the checkpoint, police may stop you for that violation.

  • In light of the state's substantial interest in combating drunk driving, sobriety checkpoint was not "unreasonable" under Fourth Amendment. The stops averaged no longer than three minutes and were found to be a relatively minor burden on motorists. Checkpoint was held permissible when officer did not stop vehicles that turned around to avoid checkpoint. People v. Rister, 803 P.2d 483 (Col. 1990).
  • BEWARE of the Fake Checkpoint. Police may not create a checkpoint simply to search for drugs. Police often set up a sign indicating “DRUG CHECKPOINT AHEAD” to scare drivers into committing an illegal action. These signs are usually set up near an overpass (or other area of extended visibility). Officers using binoculars watch for unusual actions by car occupants like throwing objects from the car (littering). If observed, an officer will stop the car while another officer collects the litter. The occupants will be charged with drug possession. If you are traveling in a car and want to keep something private, you should keep it in the trunk in a locked and smell proof box.

Case Law

Stanger v. Colorado Dept. of Revenue, Motor Vehicle Div., State of Colo., 780 P.2d 64 (1989) -- An arresting officer has the discretion to demand a driver to submit to tests in order to reveal the presence of drugs if driver is suspected of DUI-drug offense. The driver has no right to choose which test.

Cox v. People, 735 P.2d 153 (1987) -- Since driver may have reason for refusing to submit to test that is unrelated to consciousness of guilt, inference of intoxication that is permissible from evidence of driver's refusal to take blood or breath test is rebuttable.

Drake v. Colorado Dept. of Revenue, Motor Vehicle Div., 674 P.2d 359 (1984) -- Generally, an arrested person has no right to consult with an attorney before taking a chemical test. If a defendant refuses to consent to testing before talking to an attorney, such behavior will generally be deemed a refusal.

Halter v. Department of Revenue of State of Colo., Motor Vehicle Div., 857 P.2d 535 (1993) - Officers' request that driver undergo drug testing was reasonable where breath test showed no presence of alcohol but driver displayed various indications of intoxication. If an officer has probable cause to supported arrest and breath alcohol test, officer also may request that driver submit to a drug test. If driver passes the breath test, drug use is a reasonable explanation for driver's intoxication regardless of whether other evidence existed to support search for drugs.

Dayhoff v. State, Motor Vehicle Division, 595 P.2d 1051 (1979) -- Driver not driving on public highway is not controlled by Express consent statute. Driver may refuse test without license suspension.

Thompson v. People, 510 P.2d 311 (1979) -- Standard of proof for DUI is "substantially under the influence," rather than intoxication to the "slightest degree". The degree of intoxication must be substantial so as to render one incapable of safely operating a vehicle.

Assistance

If you need assistance with a DUI case please consult a lawyer. The following Colorado NORML Board Members are DUI lawyers: