Marijuana and DUI
The public perception of marijuana is changing as it becomes viewed as more acceptable and mainstream. Marijuana is legal in some states, but it is not legal in Florida. Marijuana is legal in the state of Florida with a prescription. With this legalization of marijuana for medical purposes, there are more and more people legally carrying and using marijuana. However, even if you carry and use marijuana legally, you can still be arrested for DUI.
Can you be arrested for a DUI for using marijuana? Can you be arrested for a DUI using marijuana if you have a prescription for marijuana?
Yes, you can be arrested for a DUI for using marijuana. You can even be arrested for a DUI using marijuana if you have a valid prescription for marijuana. The way that the DUI statute is written, a person can be arrested for DUI if they are under the influence of alcohol or of a controlled substance. Marijuana is a controlled substance under Florida law. As such, if you are found to be under the influence of marijuana then you can be arrested for a DUI.
For a DUI using marijuana, there is no difference under the law for when you have a prescription for marijuana compared to if you use it illegally. However, it is mitigating if you have a prescription for marijuana compared to if you used it illegally.
Can you be under the influence of marijuana for a DUI?
Yes, but marijuana effects everybody differently and varies from person to person. The more frequently that a person uses marijuana, the more tolerant they become to the drug and the less impaired they become by it. When determining impairment for a DUI, the law states that a person must be under the influence of marijuana to the extent their normal faculties are impaired. This means your ability to walk, talk, judge distances, and drive a car. These normal faculties are tested by the field sobriety exercises.
Does marijuana show up on a breath test?
No, marijuana cannot be detected with a breath test. When you blow for a breath test, the breath test only analyzes for alcohol. It does not test for any drugs. The police would need to request a blood or urine sample to be tested for drugs.
How do the police know if you smoked marijuana?
The police will only know that you smoked marijuana by one of three ways.If you admitted to smoking marijuana, if you tested positive in a urine, or if you tested positive in a blood test. Even if you test positive for marijuana, it does not show when you last consumed marijuana. Urine tests can only determine whether you've ingested marijuana from a certain time period, but they do not quantify marijuana. In other words, urine tests cannot show how much marijuana you have consumed.
What if the police cannot tell if you've smoked marijuana? Can you be arrested for a DUI if you refused to give a blood or urine sample?
As mentioned above, those are the only three ways by which the police will know if you smoked marijuana. If the police only suspect you smoked marijuana, they can potentially arrest you for DUI, but it will be very difficult for them successfully prosecute you with a skilled DUI lawyer. If you refuse to give a blood or urine sample, you can still be arrested for a DUI. However, as just discussed, with a skilled DUI defense lawyer it will be very difficult for the state to successfully prosecute the case.
Can you be arrested for a DUI if you used marijuana and had a couple of drinks?
Yes. This is one of the most common scenarios where a person is arrested for a DUI. You can be arrested for a DUI even if your provide a breath sample of less than the legal limit of .08 if you've used marijuana. In situations such as this, the prosecutors will use a toxicologist to testify that the use of alcohol and marijuana together can exponentially enhance the impairing effects of the drugs if they were used separately. This is where an experienced DUI lawyer can attack the toxicologist's testimony. A toxicologist will have to admit that these substances effect everybody differently. Furthermore, a skilled DUI lawyer will make certain the toxicologist does not testify that a person is under the influence of these substances because that is an ultimate issue for a jury to decide, not a witness.
At Keller Melchiorre & Walsh, we have seasoned, battle-tested DUI attorneys that are very familiar with DUIs and DUI marijuana cases. As former prosecutors, they have handled thousands of DUI cases.