DUI – Marijuana

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DUI Marijuana

While marijuana use for both medicinal and recreational purposes has become more socially acceptable in recent years, for most people it remains illegal in Georgia.  And driving under the influence of marijuana, regardless of whether or not you are a legal user of cannabis products, has serious repercussions that can affect your ability to drive as well as your liberty.

O.C.G.A. § 40-6-391, Georgia’s DUI Statute, has three sections dealing with driving under the influence of marijuana.  These are:

DUI Marijuana - Less Safe

O.C.G.A. § 40-6-391(2) pertains to DUI Less Safe, and states that a person may not drive or be in actual physical control of any moving vehicle while “under the influence of any drug to the extent that it is less safe for the person to drive.”

In order to determine whether a person is a less safe driver as a result of his or her consumption of a controlled substance, the finder of fact takes into account all the facts and circumstances surrounding the person’s arrest.  These may include (but are not limited to):

  • The accused person’s driving (weaving, failure to maintain lane, speeding, failure to use safety equipment such as headlights);
  • The accused person’s speech patterns and behavior, as observed by the arresting officer;
  • The accused person’s performance on Standardized Field Sobriety Tests (click here to learn more about Standardized Field Sobriety Tests and how they work);
  • The presence of controlled substance(s) in the person’s blood, as determined by chemical testing.

DUI Marijuana - Per Se

O.C.G.A. § 40-6-391(6) pertains to DUI Per Se.  Under the statute, it is unlawful to drive while there is “any amount of marijuana or a controlled substance as defined by Georgia law present in the driver’s blood or urine.”  The statute specifically includes any metabolites and derivatives of such drugs as indicative of impairment.

However, in Love v. State, the Georgia Supreme Court held that the per se statute as written was unconstitutional because it violated the Equal Protection clause of the U.S. and Georgia Constitutions as applied to marijuana users.  As the statute was written, the State would have had to prove that a legal user of marijuana was a less safe driver due to his or her consumption of marijuana.  However, for an illegal user of marijuana, the State only had to prove that there was any amount of marijuana or a marijuana metabolite in the person’s blood.  However, the pharmacological effects of legally-used marijuana are virtually indistinguishable from the effects of illegally-consumed marijuana – a legal user would be just as impaired as an illegal user, but they were being treated differently by the wording of the law.  The Supreme Court found that this distinction was arbitrarily drawn and not directly related to the public safety purpose of the legislation.  Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999).

The functional effect of this is that a marijuana DUI can only be proven under the Less Safe section of the DUI law.

DUI Combination of Substances

O.C.G.A. § 40-6-391(4) pertains to driving under the influence of multiple substances, including drugs, alcohol, and/or glue, aerosol, or toxic vapor.  Under the statute, it is unlawful to drive while “under the combined influence of any two or more” of the substances listed above, to the extent that it is less safe for the person to drive.  This is also a less safe, not a per se, section.  Thus, the same analysis of the totality of the circumstances must be done before a person can be convicted under this subsection.

Penalties for a Marijuana DUI

In general, the penalties for DUI – Marijuana are the same as they are for DUI Alcohol and are dependent upon the number of prior DUI convictions a person has received within the last 10 years.  In general, the penalties are as follows:

Penalties for Marijuana DUIs

First Offense in 10 Years Misdemeanor ·        At least 24 hours but not more than 1 year of jail time;

·        12 months of probation, less any time spent in jail;

·        A fine of $300 – $1,000, plus surcharges and court costs;

·        40 hours of community service at a 501(c)(3) non-profit organization;

·        DUI or Drug Use Risk Reduction Program;

·        Clinical Evaluation and Treatment;

·        License Suspension

Second Offense in 10 Years Misdemeanor ·        At least 72 hours but not more than 1 year of jail time;

·        12 months of probation, less any time spent in jail;

·        A fine of $600 – $1,000 plus surcharges and court costs;

·        240 hours of community service at a 501(c)(3) non-profit organization;

·        DUI or Drug Use Risk Reduction Program;

·        Clinical Evaluation and Treatment;

·        License Suspension

Third Offense in 10 Years High and Aggravated Misdemeanor ·        At least 120 days but not more than 1 year of jail time;

·        12 months of probation, less any time spent in jail;

·        A fine of $1,000 – $5,000 plus surcharges and court costs;

·        240 hours of community service at a 501(c)(3) non-profit organization;

·        DUI or Drug Use Risk Reduction Program;

·        Clinical Evaluation and Treatment;

·        License Revocation

Fourth or Subsequent Offense Felony ·        At least 90 days but not more than 5 years in jail/prison;

·        5 years of probation, less any time spent in incarceration;

·        A fine of $1,000 – $5,000 plus surcharges;

·        At least 60 days of community service at a 501(c)(3) non-profit organization;

·        DUI or Drug Use Risk Reduction Program;

·        Clinical Evaluation and Treatment;

·        License Revocation

It is important to note that these are the penalties for Marijuana DUI charges alone.  I frequently see DUI Marijuana cases in conjunction with other charges, especially drug charges such as Possession of Marijuana – Less than One Ounce.  I also frequently see them in connection with traffic offenses.  If you are convicted of a Marijuana DUI as well as other charges, judges can sentence you more harshly than they could for the DUI alone.  Judges can even order that sentences run consecutively (back to back) rather than concurrently (overlapping).  This can result in potentially long sentences in Marijuana DUI cases.

This does not mean that the situation is hopeless, however.  The State must prove that you were a less safe driver due to your alleged consumption of marijuana.  This means that a Georgia DUI Attorney who is skilled at challenging the State’s “less safe” evidence is absolutely essential.  I have completed much of the same DUI training that law enforcement receives, and as a result, I can accurately analyze the evidence, figure out what mistakes were made in your case, and ultimately point out when the State cannot prove guilt beyond a reasonable doubt.  If you have been charged with a DUI Marijuana charge, call me or text me today.