Can One Face a DUI Charge for Using Marijuana?

Marijuana use is controversial in America, and some states are already pushing for legalization. However, currently, marijuana is still considered a Schedule 1 substance. 

Schedule 1 means that this product of the cannabis plant has a high chance of being misused and abused. Moreover, it has no accepted medical use as treatment in the United States. However, studies are slowly looking into the benefits of cannabis. 

And while marijuana use is a hot topic, using it while driving is not. The law may treat the recreational use of marijuana differently, but driving intoxicated due to marijuana use can result in fines, penalties, and even jail time. 

To better understand this topic, it’s best to lay out questions that need to be answered. Does DUI (driving under the influence) include using intoxicating substances like marijuana?

What are the legalities surrounding DUI charges involving marijuana use, and what are the penalties? How does one determine if one is intoxicated with a substance and is unfit for driving?

This article will explore the legalities surrounding DUI charges, especially when addictive substances like marijuana are involved.

Also, this write-up will help readers learn how law enforcement determines if a driver is intoxicated and unfit for driving.

Furthermore, this article will give an overview of the possible penalties involved with this kind of case and potential mitigating factors that can lessen convictions, if any. 

DUI charges, especially cases that involve Schedule 1 substances and alcohol, carry a severity that can lead to hefty fines and possible jail time. Criminal defense law firms like Ben Michael and Associates have compiled statistics on the number of people involved in DUI cases. Reading up on these can help one learn more about what to do in a DUI situation.

When involved in DUI cases, it’s best to contact law firms focused on defense against criminal charges. The legal procedures in a DUI case involving marijuana can be complex and confusing. People caught in this kind of situation can use the help of a capable criminal defense lawyer. 

DUI Arrest Procedure: How Does Law Enforcement Implement It? 

The law has an arrest procedure that the police initiate whenever there is possible drug use while driving. 

  1. Arrest: The DUI process starts with an arrest. Usually, it’s a traffic stop after the police notice erratic behavior. The police only need probable cause to initiate a traffic stop and arrest if it goes that way. 


The only thing the police need to merit an arrest is reasonable suspicion. This reasonable suspicion means that if one acts unusually on the road, the police can demand the driver to leave their car for an inspection. 

Unusual behavior includes erratic gestures, impaired driving, and other behavioral effects of being intoxicated with marijuana.


Booking: At this point, the police will have brought the traffic violator to the precinct for detainment. The offender can be detained until the preliminary hearing. 

Preliminary hearing: The judge will determine if there’s enough evidence to pursue the case at this phase.

Trial and sentencing: Once determined that there’s sufficient evidence, a trial takes place. After which, the judge orders sentencing. 


The issue with marijuana in a DUI case is the impairment caused by the substance that can disrupt a driver’s sound judgment and perception on the road. 

According to the CDC (Centers for Diseases Control and Prevention), there are three effects of marijuana on a driver that can lead to road crashes and accidents:  

  1. Distorted perception
  2. Slower reaction and decision-making time
  3. Impaired coordination

Legislation on Drug-Impaired Driving

Unlike other DUI laws, those involving drugs like marijuana are complex and difficult to generalize. States have differing stances on this subject, and it’s best to check state laws. 

(Note: these statistics have been reported as of March 2023)

  • Ten states have zero tolerance for THC or a metabolite. 

THC (tetrahydrocannabinol) is a psychoactive cannabinoid responsible for the “high” a person experiences when using marijuana. 

THC metabolite residue signifies that there has been a presence of THC in the body.  

  • Three states have zero tolerance for THC but no metabolite restrictions.
  • Four states have specific “per se” limits for THC.
  • One state (Colorado) has adopted a permissible inference law for THC.

Four Different Charges for DUI of Marijuana


Per Se Marijuana DUI: This DUI charge depends on the actual levels of THC the driver has at the time of testing. Usually, the driver will undergo a drug test after an arrest. The THC level needed to press charges depends on state policies. 

Impairment DUI: This DUI charge depends on the actual proof of impairment during the arrest. The police must prove that the driver has telltale signs of someone intoxicated by marijuana. 

Permissible Inference law: A version of the Per Se DUI adopted by Colorado. This DUI charge depends on whether the level of THC after testing amounts to 5ng/ml (nanograms per milliliter) or higher. 

Zero tolerance DUI: This DUI charge depends on the presence of THC, no matter how minute it is. If THC is detected, the DUI charge will press forward. If inactive THC metabolites are found in the blood hours, days, or weeks after use, a driver can be jailed, even if they are not high at the moment of the DUI charge.

What Are the Penalties of a Marijuana-Impaired Driving Conviction?

Each state has a variety of penalties for drug-impaired driving. One can check out the state legislation to know the penalties for a DUI case. However, some penalties are similar in the majority of the states. 

Here are some penalties one can expect upon getting a DUI for marijuana use conviction:

  1. Conviction may result in a fine.
  2. Misdemeanor charges may lead to one year of jail time.
  3. The sentence may be more than one year of incarceration.
  4. Conviction may result in license suspension.
  5. The driver may be obligated to use an ignition interlock device (IID) in their vehicles. An IID is a device that prevents a driver from starting a car unless they pass a breathalyzer test. 
  6. The driver may be ordered to participate in community service.
  7. The driver may face house arrest or serve probation.
  8. The driver must participate in a drug rehabilitation program.


Penalties can be severe when a DUI case results in property loss, injuries, and loss of life. The judge has the final say in sentencing, and it can go leniently or come out stringent. 

In the occurrence of DUI resulting in death, the case will become a felony charge, and the penalties will drastically go up. The defendant will be tried for vehicular homicide. In some states, it’s DUI manslaughter, and a conviction will likely lead to incarceration. Some states may impose lengthier sentences along with hefty fines. 

For more information on DUI charges involving marijuana use, consult seasoned cannabis lawyers or criminal defense law firms.




What You Need To Know About Marijuana Use and Driving 


Tetrahydrocannabinol (THC) 


Drug Impaired Driving 


ACMT Position Statement: Interpretation of Urine for Tetrahydrocannabinol Metabolites 


DUI Resulting In Death: Charges, Penalties & More 


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