In 1938, the first Blood Alcohol Content (BAC) law was passed. This law stated that if your BAC was .15 or higher, you were driving under the influence of alcohol (DUI). By 2005, all 50 states made .08 the legal limit. Public service campaigns have drilled that number, .08, into the heads of teenagers taking driver’s education courses, and into the heads of partygoers on New Year’s Eve and St. Patrick’s Day. But what is the “legal limit” for marijuana?

 In Education, Patient Resources

In 1938, the first Blood Alcohol Content (BAC) law was passed. This law stated that if your BAC was .15 or higher, you were driving under the influence of alcohol (DUI). By 2005, all 50 states made .08 the legal limit. Public service campaigns have drilled that number, .08, into the heads of teenagers taking driver’s education courses, and into the heads of partygoers on New Year’s Eve and St. Patrick’s Day. But what is the “legal limit” for marijuana?

In Nevada, you can be charged with DUI in a variety of ways. In regards to alcohol, if your BAC is .08 or greater, you are considered “Per Se” driving under the influence. “Per Se” means that once the law is able to show that your BAC is .08 or greater, they are no longer required to prove that the alcohol affected you or your ability to drive.
How does “Per Se” relate to marijuana DUIs? The DUI laws state that “It is unlawful for any person to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access with an amount of a prohibited substance in his or her blood or urine that is equal to or greater than….Blood: 5 nanograms of marijuana metabolite or 2 nanograms of marijuana. Urine: 15 nanograms of marijuana metabolite or 10 nanograms of marijuana” NRS 484C.110(3).

Under this law, as it is currently written, marijuana and marijuana metabolite have a “Per Se” amount, just like alcohol’s BAC of .08. If a person is driving or in actual physical control of a vehicle with 2 or more nanograms of marijuana or 5 or more nanograms of marijuana metabolite in their blood, they are “Per Se” DUI; however, the marijuana “Per Se” limits, unlike the .08 for alcohol, do not relate to a person being impaired. Instead, the numbers relate only to the ability to accurately detect marijuana in the blood or urine. In reality, a person smoking marijuana, unlike a person having a few beers, has no way to gauge if they are over the “Per Se” limit.

With the change of the marijuana laws, many have asked if marijuana is still a “prohibited substance”. This is a tough question to answer. Currently, in the DUI laws, “prohibited substance” is defined as “Any of the following substances if the person who uses the substance has not been issued a valid prescription to use the substance and the substance is classified in schedule I or II…when it was used: marijuana or marijuana metabolite”. NRS 484C.080 (The rest of the prohibited substances are not listed, as not relevant to this article.)

Even though it is legal to use and possess marijuana under certain circumstances in Nevada, it is still listed as a schedule I drug and a prohibited substance in the statutes. The Nevada legislature has not yet changed any of these statutes.[1] What about medical marijuana card holders? The definition of “prohibited substances” specifically excludes persons who have been issued a valid prescription to use the substance. Will the courts or the legislature consider medical marijuana cards as “valid prescriptions”? Although all medical marijuana patients in Nevada must get a letter from a physician, it is not a “prescription” for marijuana.

What does this mean for DUIs and marijuana? Even though the law may be unsettled in the area of “Per Se” marijuana DUIs, just like alcohol, if you are driving or in actual physical control of a vehicle, while under the influence of a controlled or prohibited substance you can be prosecuted for DUI, regardless of the amount of nanograms you have in your system, and regardless if you are a medical marijuana patient.

Here’s the bottom-line: Yes, even medical marijuana patients can get DUIs. Yes, even though recreational marijuana use is legal, you can still get a DUI for driving and having marijuana in your system.

Here is some practical advice from a DUI defense attorney: NEVER smoke marijuana in your car. In the vast majority of the marijuana DUI cases that we handle, the first clue the police officers note is the odor of marijuana. Never keep marijuana or paraphernalia in your car. In certain amounts, it may be legal for you to have the marijuana; however, if you get stopped, and they smell or see your marijuana, the odds of the officer doing further investigations to determine if you are under the influence, are very high. (No pun intended.) If you have used marijuana at some time prior to you driving, make sure you aren’t wearing the same clothes that you smoked in. Same reason as above. Finally, if you get stopped by a police officer, you are required to provide the officer with your driver’s license, registration and insurance. You are not legally required to provide further information. In next month’s column, I will address more DUI information, specifically addressing field sobriety testing, blood testing and driver’s license issues. The law has changed tremendously over the past 4 years in the area of DUIs, and it is important to know your rights.

[1] The Nevada Legislature is currently in session. It is not yet known whether the Legislature will address some of the statutes and change the current law. There have been discussions in the legal community regarding getting rid of the marijuana metabolites all together, and possibly raising the nanograms for marijuana; however, as of the writing of this article, the Legislature has not yet made any changes.

4 Comments

Start typing and press Enter to search