Marijuana DUI: The Next Big DWI Crusade?

It’s already on the books, that is, the Garden State’s legal statutes that specify the use of marijuana (and certain other substances) as grounds for being arrested and charged with driving under the influence. Whatever you call it: weed, pot, grass, hash, or just plain Mary Jane, marijuana has for years been listed as one of many controlled dangerous substances (CDSs), all of which are considered illegal because they are either hallucinogenic or habit-forming. As New Jersey DWI defense lawyers, my legal team has been defending motorists charged with marijuana DUI for years now.

Under New Jersey statute 39:4-50, any motorist operating a car, truck or motorcycle who is found to be under the influence of any habit-producing drug or narcotic can be arrested and charged with a violation of state law. The fines and punishments are not unlike those associated with alcohol-related DWI; hundreds of dollars in fines, plus possible jail time and suspension of one’s driver’s license. The interesting thing is that we may just see more and more pot-related DUIs in the future thanks to the course of marijuana legalization in many states.

From a legal point of view, the use of weed versus the consumption of beer, wine or hard liquor has some differences. In fact, the statute covering marijuana DUI does not provide for any specific criteria on how the state should determine that a driver was actually under the influence of marijuana when pulled over by a police officer. The proving of this element becomes what attorneys refer to as a “fact specific” inquiry.

Only time will tell how individual states will adapt to the growing trend of medicinal and recreational marijuana use. The chemical compound THC can be detected in the bloodstream; however, unlike alcohol, it takes days rather than hours for the human body to rid itself of the chemical traces of marijuana. Yet, some states are using blood tests to charge and sometimes convict motorists of marijuana DUI even though the physical effects of the drug may have long passed.

Nevertheless, with safety advocates sounding alarm bells and pointing to drug DUI as the next big challenge after DWI, occasional smokers of weed may well be at increased risk of being convicted of DUI in the not too distant future. As drivers ourselves, we understand the need to maintain safety on our public roadways, but we must also make certain that the legal rights of individuals are respected. The road to achieving a balanced approach to marijuana DUI will likely be a rocky one, especially if more and more traffic deaths are attributed to pot smoking.

Take, for instance, a news article we ran across just a couple of days ago. According to that report, as medical marijuana sales have begun to expand — now in 20 states including New Jersey — marijuana use might become a growing headache for traffic safety officials. This may come to pass sooner than later, especially if marijuana-related traffic accidents become more common. According to the news, there is evidence that marijuana had been found in the systems of deceased drivers three times as often in 2010 than in 1999, based on a six-state study by researchers at Columbia University and published in the American Journal of Epidemiology.

According to experts, the trend strongly suggests that weed may be playing a much larger role in fatal traffic accidents than in past years. The study was reported based on data taken from the federal Fatality Analysis Reporting System (FARS), which covered more than 23,000 motorists killed during the 11-year period from 1999 to 2010.

While alcohol still remains the most intoxicating substance detected in deceased motorists, according to the Columbia study, Cannabinol (a remnant of marijuana) was found in about 12 percent of dead drivers during the 2010 calendar year. Researchers reviewed the cases of almost 40 percent of those drivers who died in 2010 across six separate states. The study noted that this was a marked increase from 1999, when pot was detected in the bodies of just over four percent of those drivers who died in traffic accidents.

Because marijuana appears to be the most common non-alcoholic drug found in toxicology screenings of deceased drivers, it is a fair assumption that the recent loosening in laws against the use of weed in almost half of the states in the nation, there is a sea change coming. Some people believe that this may be more than a trend and that, in the future, law enforcement and the courts will see more and more cases of DUI involving non-alcohol drugs.

Of course, there are others who feel the trend toward further legalization of marijuana is not such a bad thing. In fact, according to the same article, a separate study that also used the FARS data found that in states where medical marijuana has already been approved, traffic deaths had dropped by more than 10 percent after the first year of legalization. That study, produced by researchers at the University of Colorado in cooperation with researchers at Oregon and Montana’s state universities, was published last year in the Journal of Law & Economics.

Time will tell, as they say. State legislatures all across the nation will likely take up the challenge of writing laws to better handle the increased risk, perceived or otherwise, of marijuana use and intoxicated driving. As always, attorneys such as those at my law firm will be ready to defend motorists who have been unjustly accused of drug DUI. In the end, the law must be relied on to defend individual rights as well as protect society at large.

Pot Fuels Surge in Drugged Driving Deaths, NBCNews, February 15, 2014