Marijuana DUI: How Marijuana Use Can Be Considered a DUI

The recent arrest of an NFL player for driving under the influence of marijuana has put this little-known crime into the spotlight. Here's what you need to know about marijuana DUIs.

by Michelle Kaminsky, Esq.
updated May 02, 2022 ·  4min read

Although marijuana has been legalized in some states, remember that driving under its influence is still illegal in all states—and a “marijuana DUI” can carry substantial penalties.

Despite the existence of marijuana DUI laws around the country, whether marijuana in one’s system actually impairs driving or increases the risk of vehicle accidents is up for debate. Although driving while high can mean slower reaction times and loss of peripheral vision, high drivers generally compensate for these deficiencies by being more careful.

Still, the arrest of Pittsburgh Steelers running back Le’Veon Bell for driving under the influence of marijuana brought to the forefront an issue that is perhaps common among pot smokers—the fact that many aren’t even aware you can get a DUI for being high. Bell reportedly said as much to the arresting officer, insisting that although he had smoked marijuana two hours prior, he felt fine to drive.

What does it mean to be driving under the influence of marijuana, and what are the marijuana DUI consequences? Read on.

Marijuana DUI Laws

Just as with the issue of legalizing marijuana, DUI laws regarding pot vary by state. Some states provide that driving with any amount of marijuana in one’s system is illegal. This type of law is often referred to as a “per se” DUI because marijuana found at any level in the driver’s system can result in a DUI arrest.

Marijuana testing usually measures the level of marijuana metabolites, compounds that may remain in a person's system for days, weeks, or even months after drug use. As such, per se laws could prove problematic in states that have legalized marijuana. Medical use doesn't have to be immediately before operating a vehicle to show up in blood, urine, or even hair samples.

Other states apply a threshold similar to the DUI laws regarding alcohol.

In such jurisdictions, if a marijuana DUI test shows that the drug is in the driver’s blood or urine above a certain concentration level, the person would be considered to have been driving under the influence. Just as blood alcohol level thresholds vary by state, so do DUI marijuana levels among the jurisdictions that have them.

Even though a person tests under the threshold, it does not mean he cannot be charged with driving under the influence. In some states, a prosecutor can present evidence of the driver’s behavior or other extraneous proof (such as a smell of marijuana coming from the vehicle) to prove impairment.

In a small number of states, the prosecutor must prove impairment even if the driver had a relatively high level of marijuana in his system; erratic behavior or speech patterns or the arresting officer’s testimony that she smelled marijuana are examples of such possible evidence.

The Question of “Driving”

It is important to note that as with an alcohol DUI, a driver is often defined as someone with “actual physical control” of a vehicle. This does not necessarily require that the person be driving or operating the vehicle at the moment of arrest. That is, a judge can consider factors such as whether the car was parked or moving, turned on or off, or had the keys in or out of the ignition in determining guilt for a marijuana DUI.

Marijuana DUI Consequences

The penalties for driving under the influence of marijuana are similar to those for alcohol DUIs and may include one or more of the following:

  • Fine
  • Jail (up to one-year incarceration)
  • Prison (one year or more incarceration)
  • License suspension
  • Community service
  • Probation
  • House arrest
  • Use of ignition interlock device on the vehicle (vehicle will not start until the driver passes a breathalyzer test)
  • Impoundment of vehicle
  • Participation in a victim impact program
  • Participation in a drug/alcohol abuse program

Note that penalties tend to be more severe in the following instances:

  • The driver is a repeat offender with one or more previous DUI convictions.
  • The driver caused an accident, particularly if it involved bodily harm, death, or property damage.
  • The driver was driving on a suspended license or without a valid license.
  • Marijuana testing showed an extremely high level of the drug in his system.
  • There was a minor in the vehicle at the time of the arrest.

In most states, a judge has broad discretion regarding marijuana DUI sentencing. First offenses, so long as there are no aggravating circumstances such as those described above, are often given milder sentences, but every case is different.

The most important takeaway here is that driving under the influence of marijuana can be just as serious of a crime as driving under the influence of alcohol in many jurisdictions and even easier to prove in some states. Always check your state laws to know the rules that apply to you.

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Michelle Kaminsky, Esq.

About the Author

Michelle Kaminsky, Esq.

Freelance writer and editor Michelle Kaminsky, Esq. has been working with LegalZoom since 2004. She earned a Juris Docto… Read more

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.