Driving While High Charge: What Happens?

Review How the Driving While High Test Works and 2023 Legal Defenses

Last St. Patrick’s Day, drivers were made aware by headlines of how DUI checkpoints now include driving while high test mouth swabs that can tell if you smoked pot days ago. Today, we review what has changed under new laws regarding the growing number of drivers now getting arrested for DUI related to driving while high.

One fact that remains just as true today, is driving while high consequences are equally as severe for a person as getting a DUI, DWI charge for being over the alcohol legal limit. Furthermore, police not having probable cause to stop a driver in the first place is still one of the best legal defenses to this charge.

Is the smell of weed enough to search a car? The odor of Marijuana alone is not indicative of a crime, according to expert DUI lawyers who regularly challenge driving while high cases since Cannabis has become legal in many states today. This complexity of local August 2023 Marijuana laws with how they apply to DUI-related offenses, is where specialist DUI attorneys often utilize various legal technicality defenses based on a driver’s rights to win this type of case.

What is known as driving under the influence is usually referred to as either being intoxicated by blowing over the legal blood alcohol content (BAC) .08 limit of alcohol, driving while high on Marijuana or other illegal drugs, and even prescription medicine. Under what the current DUI and DWI laws are, the average driving under the influence offense charge will usually happen in one of two ways. The first way is for a driver’s blood alcohol concentration, the amount of alcohol in a person’s body being at or over .08 BAC. The second way is drugged driving which does not depend on the amount of alcohol in a driver’s system. This is how someone can be charged with driving under the influence of Marijuana.

However, many sober drivers are now wrongly getting arrested for this offense and still having to fight the case out in court all the same. The video below of a recent news report investigates this very problem.


In the news: Marijuana and alcohol DUI’s should not be treated equally

Driving While High Test – Police Now Testing a New DUI Device That Detects Drugs in 5 Minutes

Since as recently as over 4 years ago in May 2019, police in a growing number of states around the country are leading the charge with a new experimental device they can use to test drivers who might be high. Police departments already implementing this driving while high drug DUI testing device, say the newly passed laws for legal recreational marijuana use is resulting in a faster effort to find a drug testing device that can be used during a traffic stop.

For decades, driving under the influence of alcohol was the primary target of many traffic stops. In August 2023, police officers’ attention is now focusing towards driving while impaired by drugs equally as much.

Police who are participating in the driving while high device experiment on individuals suspected of being intoxicated by Marijuana or other drugs, have the objective of confirming the reliability this new drug test which is similar to a near-instant breathalyzer for BAC. Police departments began use of this drug testing device through state grants which developed this new state of the art drug testing device, currently in the experimental phase while being used in the field to fight DUI.

How the driving while high drug testing device works:

  1. The drug test device has no electronics with it, unlike a breathalyzer, and a driver’s saliva test sample is entirely self-contained in a sealed package.
  2. A police officer will take out a swab and instruct the driver to swipe it inside of their mouth, underneath the tongue to absorb enough saliva for a useful test sample.
  3. This field drug test will currently take an average of 5 minutes to complete, with the device technicians aiming to reduce the drug testing device time to 2 minutes in the near future.
  4. Lastly, the officer will collect swab of a driver’s saliva, place the swab back into the kit, seal it up and be able to see the test results almost immediately.

This new driving while high test device goes even further than testing drivers for marijuana. The new portable drug screening device can also currently detect almost half a dozen other types of prescription medication, illegal drugs, and narcotics such as:

  • Amphetamines
  • Methamphetamines
  • THC
  • Opiates
  • Cocaine

The results are then processed at a local lab the police department uses for chemical DUI, DWI test analyzing and storage of test samples.

Additionally, there’s also more to this new driving while high DUI crackdown overall. Police officers nationwide are updating their training on conducting safety roadside checks and DUI checkpoints, to enhance their ability to detect a person’s drug impairment through these modern drug tests. One of the latest indicators police now look for when they suspect a driver is under the influence of cannabis, is watching for eyelid tremors, which they claim is often a THC/Marijuana impairment sign exhibited by individuals driving while high.

What is the Difference Between DUI Involving Marijuana and With Alcohol?

The new state laws for DUI and DWI will treat the penalties for both alcohol and Marijuana the same. The only exception is usually drivers who are charged with driving under the influence of alcohol, will have to install the car Breathalyzer Ignition Interlock device for a long period of time in order to get their license back.

These types of offenses are different in the way police will breath test a driver for DUIs involving drunk driving. The police can use the breath test to estimate how much alcohol in a driver’s system. However, a Breathalyzer test cannot show what level a person’s Marijuana use is.  Consequently, the arresting police officers have to conduct a DUI Marijuana test differently. This is why some companies are hard at work to create a Breathalyzer for pot that can become as commonly used by law enforcement as it is with alcohol tests.

Top 8 Signs Police Look For With Driving Under the Influence of Marijuana

Once a driver is pulled over by police and they suspect a DUI, the officer will look for signs of intoxication which indicate that an individual could be driving under the influence of Marijuana. Outlined below are 8 of the most common driving while high signs police look for.

  1. The odor of Marijuana in a car
  2. Slurred speech
  3. Glassy eyes
  4. Blood shot eyes
  5. Slow motor skills
  6. Impaired cognitive function
  7. Driving too slowly
  8. Erratic driving or weaving

While police to look for the above top 8 common signs of driving while high on Marijuana signs, the state drugged driving laws also detail how officers can investigate possible Marijuana DUIs during a traffic stop. Under these local THC DUI laws, police are allowed to demand that a driver suspected of driving under the influence of Marijuana to take a standard roadside field sobriety test, or FST.  Even though a driver does have the right to refuse taking the tests, this will likely still result in an arrest for a DUI refusal offense, that will carry all the same consequences if convicted of the charge.

As previously mentioned with DUI checkpoints for driving while high testing, another new way police test drivers for Marijuana is the mouth-swab test during the standard field sobriety testing. This is just the latest new way police have at their disposal to detect the presence of Marijuana and other drugs in suspected impaired drivers.

How Police Deal With Testing DUI Drivers That Are High

The State of Colorado was the first state to legalize Marijuana a few years ago. At the time this new law passed in 2014, Colorado officers were going through great lengths to spot stoned drivers on the roads, since they expected a significant increase of people driving while high and subsequent drug DUI arrests.

Colorado has reported that the number of traffic DUI fatalities caused by a driver under the influence of only cannabis has nearly doubled, from 39 in 2013 to 68 in 2015, according to the Colorado Department of Transportation. In Washington, the percentage of drivers involved in fatal crashes who recently used marijuana more than doubled from eight to 17 percent between 2013 and 2014, according to the AAA Foundation. Source: rgj.com

In Washington State, where they also have made pot use legal, the police can order the use a blood test for drivers suspected of being intoxicated by drugs such as Marijuana. The results of weed legalization here has also shown a spike in fatal crashes and drivers arrested for drugged driving DUI charges. Police officers throughout the state have been trained in how to test drivers for drugs, however still face challenges for individuals suspected of driving while high from smoking Marijuana. While Washington police can arrest drivers when a THC test results are at a minimum level of 5 nanograms, they are not currently permitted to set up sobriety checkpoints to test drivers in Washington like they can in Colorado and most other states.

Driving While High Charge
Driving while high in 2023, police have advanced testing for THC to determine levels. Many police departments around the country now have a new Marijuana testing device which can detect the presence of THC and other drugs in 5 minutes during a suspected DUI traffic stop.

Other data also shows some additional issues with testing drivers for pot use during traffic stops and DUI arrests. As widely reported in other news outlets, “THC concentrations drop rapidly during the time required to collect a blood specimen in the U.S., generally within two to four hours.” Oral tests using the drivers’ saliva can be done roadside without a long wait but researchers found oral tests may not “be a precise measure of the level of impairment.” Source: cnn.com

The conclusion of these studies of the roadside mouth-swab saliva tests indicate they might not be accurate. This is because if a person’s THC level has dropped before a blood draw can be administered the hospital or a police station, it is not able to conclusively prove impairment over the legal THC limit for pot use while driving.

How Does Smoking Marijuana Result In Impaired Driving?

According to the National Institute on Drug Abuse, smoking pot does impair driving. Marijuana significantly impairs judgment, motor coordination, and reaction time, and studies have found a direct relationship between blood THC concentration and impaired driving ability. Source: drugabuse.gov

Outlined below is the affect pot use can have while being high and driving, and what could happen to a person operating behind the wheel:

  • Reaction Time is Slower: A vehicle operator will take longer to react to unanticipated problem or occurrence.
  • Hyper-Focusing: A driver who has smoked pot can focus too intensely on some aspects of driving, while being prone to disregard other important factors.
  • Inability To Concentrate: An individual with a higher than legal limit THC level is far more likely to have lower attention span.
  • Difficulty Judging Distances: A person can have more difficulty judging distance accurately while driving, since Marijuana can alter a person’s sense of depth perception.

While these are the most common examples of how driving while high can affect a person operating a vehicle, there are other possible contributing factors to consider. This is because certain studies have shown that intoxication is different when comparing Marijuana and alcohol. Even though alcohol is still the top danger when driving with texting and distracted driving following very close after it, if a person has drank alcohol and smoked pot together, it will increase the level of being high.

What Do Studies Show About How Marijuana Use and Driving Affects Car Crash Rates?

According to a recent study by the Insurance Institute for Highway Safety, legalizing recreational Marijuana use is linked to increased crashes. However the results of another study taken by the American Journal of Public Health about the same time, found no correlation between Cannabis legalization and increased fatal crashes. While the one study only looked at fatal crashes and the other looked at all accidents, any increase in crash rates is cause for concern. This safety factor concern is why national strict new DUI laws have resulted when it comes to drugged driving offenses.

Despite whether pot use use is currently legal or not in a particular state, Cannabis is considered to be a drug much like alcohol is classified. Using Marijuana and getting high before driving a vehicle, will impair motor abilities which can result in costly or even deadly consequences, just as every DUI and DWI related incident can.

How Easily Can Someone Get Arrested For Driving While High?

After a person is arrested for Marijuana DUI, they understandably have many common questions such as “what are the minimum penalties when a person gets their first DUI offense?” However many people who get arrested on driving while high charges for operating under the influence of Marijuana, are surprised just how easily this offense can happen. This is because they can get charged with a DUI while parked, and not even when actually driving their car.

Under the current DUI and DWI laws throughout the United States, a person is considered to be legally in control of a vehicle if the individual is sitting in the driver’s seat at the time the police first approached him or her. For example, if an individual is in the driver’s seat while already parked in a lot or on a street when noticed by police, a person can get arrested for driving under the influence of Marijuana. This is due to the fact the police can legally assume that you had the intention to drive the vehicle while intoxicated.

As many people expect to happen, most states are likely going to legalize recreational Marijuana use in the very near future. Just because pot use may become legal everywhere however, does not mean that a person should carelessly smoke weed and drive. While the aforementioned studies do show that Marijuana has different effects on a person than alcohol, any THC intake can still have a negative impact on someone’s ability to safely drive a vehicle, motorcycle, boat, or operate machinery.

Additionally, a driving while high charge is a serious DUI criminal offense if an individual gets convicted or enters a guilty plea. Some of the long-term effects people don’t realize until too late after the fact, is how a conviction for this offense can get them fired and also will negatively affect future car insurance rates for the next 5 years on average. In order to avoid the driving while high consequences that will happen today if convicted, a defendant will need legal advice of the best Marijuana DUI lawyer driving while high experts nearest their location to establish a winning defense before court.

Legal Defenses Lawyers Use For Driving Under the Influence of Marijuana

In order for a good local lawyer to successfully fight a Marijuana DUI offense, it will require a different defense than challenging charges that involve alcohol. The first thing an attorney must do, is review the arrest details to determine validity of the reason why the arresting police officer said they stopped a vehicle. As soon as the lawyer examines this information, the next step is to establish a defense around how the Marijuana THC level was tested in a driver’s body.

What is most common to happen with a drug DUI arrest, is the police will use a blood test or urine sample to find out the THC level or other drug substance in a driver’s system. Since there so many ways for potential errors to happen both legally and technically in how the police determine the amount of Marijuana a person has recently smoked, this is often a strong area for a lawyer to use to a driver’s advantage in court.

When a person is charged with the offense of driving under the influence of Marijuana, they may have legal options which could dismiss a case. We can help drivers with everything you need to know about driving while high defense, and answer any questions you might have about your own Marijuana DUI case.

How Driving Impaired Or High From Marijuana Will Raise Car Insurance Rates

When all states eventually do pass laws to legalize Marijuana everywhere for recreational and medical use, it is important to realize it will still be a criminal offense to drive while high on any type of drugs. This drug DUI and DWI law will apply regardless whether it is pot, prescription medication, or even some over the counter supplements.

If a driver decides to plead guilty or gets convicted of the charge of driving while high, they can expect car insurance rates to go up for the next 5 years after a Marijuana DUI offense. However, it is important to point out that only a conviction for the charges, not the arrest itself, which will result in higher auto insurance rates.

A conviction for this offense will have high costs for many reasons, and a major expense is because car insurance rates can increase as much as $5,000. Although just because a driver is arrested for driving while high on local Marijuana DUI charges, it does not mean they will automatically get convicted in court and be subjected to pay these raised auto insurance premiums. This due to the fact while the new laws give police more authority to arrest someone with this offense, in contrast, it also gives lawyers more legal defenses to get a driver’s Marijuana DUI charge dismissed when it gets to county court.

Driving While High August 2023 Additional Law, News References:



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