Colin McCallin Nov. 17, 2021

Colorado: Are You Too High to Drive?

To the delight of many, marijuana is legal in Colorado. Anybody who has driven down I-25 has seen and smelled the clouds of pot smoke billowing out of driver’s windows in standstill traffic. Nonetheless, driving after smoking, vaping, or eating edibles is a highly punishable offense and carries the same penalties as driving under the influence of alcohol.

How much marijuana will impair you?

5 nanograms per milliliter of THC is the standard to show impairment. For long time users of the drug, or those that use it for medical purposes, this standard may seem low. Habitual users are quick to note that their bodies have built up a certain tolerance to THC. There is medical evidence that marijuana takes longer to leave the body of patients who use it on a regular basis, and in general, can take much longer to leave the body than alcohol. This could certainly affect the blood test of someone who has a chronic medical condition and has been using medicinal marijuana for many years to combat pain, insomnia or mental illness. It is possible that a habitual user could be arrested for DUI of marijuana even if they have not used the drugs for several days.

On the other hand, it seems that new users can appear sober on a blood test just hours after smoking a large amount and still be impaired by the drug. How impaired a person may actually be depends on many factors and, because of this, there may be significant opportunities to contest impairment in court with the help of a good lawyer.

Does it matter if I smoked or ingested the marijuana?

Yes. THC levels will be higher in the blood when a person smokes versus ingesting marijuana, however some level of active THC generally stays in the system longer when it is ingested rather than smoked. But as many Colorado residents have learned, not all marijuana has the same potency. Many of the newer strains can be extremely high in THC. Some dispensaries have very knowledgeable staff and are able to educate customers about which strains have the highest THC content and it is always a good idea to ask before using to minimize even the potential of a driving under the influence of marijuana charge.

How long after you ingest or smoke marijuana will you be impaired?

Again, this will depend on the user. A habitual user may have THC in their system for many days after they use but will not “feel” impaired. For non-habitual users, some medical experts recommend waiting between five and ten hours before driving after using marijuana.

What criteria do law enforcement use to determine whether you are driving under the influence of marijuana?

Police will give you the opportunity to take a blood test to determine how much THC is in your blood. If you refuse to take this test, your license can be suspended for up to 1 year in most cases. Alternatives are being developed to use saliva or breath tests, but these technologies are not yet available in Colorado.

If police suspect you of being high, they will ask you to partake in some roadside maneuvers. These are the same maneuvers that would be used to detect alcohol impairment and were developed in the 1970s. These roadside sobriety tests were developed to detect alcohol impairment, not marijuana impairment. The tests can be challenging, even for a sober person to accomplish perfectly. A good lawyer may be able to attack the basis of these tests, as well as whether law enforcement administered these tests properly.

Should I take the DUI blood test?

By driving in Colorado, you have already given “express consent” to take a blood test if an officer suspects you of driving under the influence of marijuana. If you agree to take a blood test, you will not face any immediate license consequences regardless of your results. If you refuse to take a blood test after being stopped, you will face the possibility of a 1 year suspension of your driver’s license. Whether to take a test or not is a decision dependent upon the specific facts of your case including driving need, when you last smoked, the strength of the marijuana, how much you smoked, and many other factors.

What are the penalties?

If this is your first offense of DUI or DWAI of marijuana, your penalties will still be significant. Penalties can include large fines, the loss of your driving privileges, and mandatory alcohol and drug education courses. If you have previous offenses, your penalties will include mandatory jail time if convicted, even if your prior offenses were DUI alcohol rather than marijuana. In Colorado, driving under the influence of marijuana carries the exact same severity of penalties as driving under the influence of alcohol.

What can a lawyer do for you?

The legalization of marijuana is still relatively new in the state of Colorado. There are still many gray areas in enforcing the laws. In fact, law enforcement and lawyers alike are still learning how best to handle crimes involving marijuana now that it has been legalized. Because of this, there may be ample opportunities for a great lawyer to discover weaknesses in your case. Check out the news about one of our recent successes in DUID cases here. If you or a loved one are charged with a DUID, contact us. We can help you.