A Colorado Marijuana DUI is Still a DUI

Colorado is renowned as the first state to approve legal possession and recreational use of small amounts of marijuana. In fact, Colorado has been a model for other states that have moved toward marijuana’s legalization. However, none of this means that it’s safe or legal to drive under the influence of a dank blaze. If you’ve been caught doing that, you can expect to face the same harsh penalties of a drunk driver. A Colorado marijuana DUI is still a DUI.

In this Guide: 

• High Time for Clarity: Colorado’s Marijuana DUI Explained
• Types of Marijuana Driving Charges
• Defenses Against Marijuana DUI Charges
• Penalties for Colorado Marijuana DUI

High Time for Clarity: Colorado’s Marijuana DUI Explained 

The Centennial State recognizes little difference between driving under the influence of alcohol, marijuana, or a combination of both. In fact, it’s all covered in the same statute, specifically Colorado Revised Statutes 42-4-1301.

“A person who drives a motor vehicle or vehicle under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, commits driving under the influence.” — C.R.S. 42-4-1301 (1) (a) 

A Colorado marijuana DUI is a misdemeanor until your fourth drug and/or alcohol-related DUI offense. At that point, it becomes a class 4 felony, which I’ll discuss later in this article.

How Police Spot Drivers Influenced by Marijuana 

A study published in the National Library of Medicine, in 2021, seems to disprove the misconception that stoned drivers are safer drivers. The report indicates that marijuana can impair a driver’s tasks, such as:

• Distance estimation
• Hand-body coordination
• Reaction time
• Short-term memory
• Information processing speed
• Distraction susceptibility

Law enforcement officials already watch for people who are:

• Violating traffic laws
• Driving too fast or too slow for the speed limit
• Weaving in and out of your lane
• Making wide or erratic turns

These are called “observable” signs of possible impairment, and police will pull you over for them.

You may be arrested on suspicion of marijuana DUI if an officer believes they have enough probable cause to do so.  Police often use the following in some fashion as bases for arrest:

• The officer smells marijuana in your vehicle
• Marijuana or pot-smoking paraphernalia is visible inside your vehicle
• You exhibit slurred speech, bloodshot eyes, drowsiness, or inappropriate behavior

Post-Arrest Drug Testing 

You’ll have to provide a blood sample if you’re arrested under suspicion of driving while high. You do not really have an option to refuse, according to Colorado drug testing laws.

Consequences of Refusing the Drug Test 

You may immediately lose your license and face other penalties if you refuse this test – even if you’re later cleared of the allegations.

The “Legal Limit” of Marijuana in Colorado 

Colorado law provides a permissible inference that 5 nanograms or more of THC, or tetrahydrocannabinol, per milliliter of blood is too much to safely operate a vehicle.

A “permissible inference” means that a jury can conclude that, if it is proven that you had 5 nanograms or more of THC in your system, you were driving while high. However, a THC reading is not definitive proof. Marijuana can linger in your system for days without it affecting you.

A prosecutor must prove your driving was impaired by marijuana to achieve a conviction.

Types of Marijuana Driving Charges 

There are two Colorado DUI levels of impairment you can be charged with if you’ve consumed alcohol, marijuana, and/or other drugs:

1. DUI – driving under the influence
2. DWAI – driving while ability impaired

DUI is the more serious offense. You can be charged with DUI if your driving or conduct demonstrates substantial impairment. This is a subjective standard which largely depends on the arresting officer’s evaluation. However, Colorado law enforcement officers are trained to identify signs of impairment.

DWAI of Marijuana 

You may face a DWAI charge if police believe you were even minimally impaired by marijuana. It doesn’t take much to draw a DWAI charge. Still, the prosecution must prove you were actually impaired at the time of the stop.

Defenses Against Marijuana DUI Charges

Facing DUI or DWAI charges in Colorado is serious. An experienced criminal defense attorney will closely analyze the prosecution’s case for flaws and raise doubt about its evidence.

Common marijuana DUI defenses include:

• Insufficient Probable Cause: Police cannot stop you on a ‘hunch.’  They must have a valid, observable reason to pull you over. After the stop, they need further probable cause to arrest you for marijuana DUI. Absent a solid, explainable reason, any evidence gathered from the stop or arrest could be thrown out.
• THC Test Limitations: THC remains detectable in your blood for longer than it can impair your driving.  A blood sample can narrow a window down to about 12 hours, but that is still longer than the typical period of marijuana intoxication.
• Inaccurate THC Testing: All evidentiary chemical tests must follow specific routines and meet strict standards. These standards are set by Colorado marijuana drug test laws. This applies to every step of the process, from the conditions under which the test was performed, to where and how samples are stored. Your attorney can scrutinize the process and poke holes in the prosecution’s case.
• Challenging Search and Seizure Tactics: Evidence collected without either probable cause, a warrant, or your consent can be excluded. For example: Police can gather evidence that’s “in plain sight” after the stop. However, they need a warrant, your consent, or strong probable cause to rummage inside your car or open your trunk.
• Guarding Your Rights: Police must respect your Constitutional rights when questioning or detaining you. For example, they must warn you that you have the right to remain silent until you can hire an attorney. Police cannot intimidate or coerce you into admitting or signing anything.

If law enforcement acted improperly, any evidence they obtained may be inadmissible and the charges dismissed.

Getting Charges Reduced

A sharp attorney could set up a favorable plea bargain by poking holes in the prosecution’s evidence. This can result in lighter penalties.

Both sides can start these talks, and while they can be drawn-out and stressful, the payoff can be huge — like getting your DUI marijuana charge reduced to reckless driving.

A skilled lawyer knows how to negotiate a plea deal by finding flaws in the prosecutor’s case, potentially achieving reduced charges like reckless driving.

Penalties for Colorado Marijuana DUI

Remember: a marijuana DUI in Colorado is the same as an alcohol-related DUI. The penalties are therefore identical. After the first conviction — whether it be for DUI or DWAI, drugs or alcohol — each new one brings harsher punishment.

Also, as with alcohol DUI/DWAI convictions, marijuana-related driving offenses can never be sealed or expunged. A DUI conviction stays on your record forever. If you get a marijuana DUI at age 20, then another one at age 42, you’ll be penalized for a second conviction despite having a clean record for two decades.

First DUI Conviction 

• Jail: 5 days to one year*
• Fines: $600 to $1,000*
• License suspension: Up to 9 months
• Community service: 48 to 96 hours of community service

*Judges have the discretion to suspend jail time and fines on a first-time DUI.

Second DUI Conviction 

• Jail: 10 days to 1 year
• Fines: $600 to $1,500
• License suspension: Up to 1 year
• Community service: 48 to 120 hours
• Ignition Interlock Device: IID required for 2 years after your driver’s license gets reinstated

Third DUI Conviction

• Jail: 60 days to 1 year, with a mandatory minimum of 60 days behind bars
• Fines: $600 to $1,500
• License suspension: Up to 2 years
• Community service: 48 to 120 hours
• IID: required for 2 years after driver’s license is reinstated

Additionally, after any DUI conviction, the Department of Motor Vehicles will assess 12 points to your driver’s license. These points affect your record even after you are allowed to drive on a restricted license.

Ignition Interlock Devices 

An ignition interlock device is a contraption that gets installed on a DUI offender’s car — at the offender’s expense. It is a breathalyzer attached to the ignition that prevents your car from starting if it detects alcohol. The IID also records the date and time of a failed test.

An IID does not detect marijuana in your system. However, the state recognizes that drug- and alcohol-related DUIs tend to happen together, which is why an IID is required even after a marijuana-related DUI conviction.

Penalties for DWAI Convictions 

Except for a first offense, DWAI and DUI marijuana convictions carry similar penalties. The penalties for a first marijuana DWAI conviction are:

• Jail: 2 days to six months
• Fines: $200 to $500
• Community service: Up to 48 hours

The DMV will assign 8-points to your driver’s license after each marijuana DWAI conviction. Second and third offenses can also carry up to 120 hours of community service and fines up to $1,500.

Probation After Misdemeanor DUI

The judge may suspend certain punishments after a misdemeanor DUI conviction. For example, a sentence may be:

• 90 days in jail (suspended)
• $1,000 fine, plus court costs (with part of the fine suspended)
• 48 hours of community service
• 9 months driver’s license suspension

A suspended sentence means you don’t have to serve that punishment right away. You may never have to spend a day in jail or pay the entire fine. However, you could be sentenced to up to 2 years of probation in lieu of jail. If so, you must abide by the terms of your probation, which can include:

• completing community service
• submitting to periodic random drug tests
• attending drug/alcohol education and therapy classes
• attending a 3-hour victim impact panel
• monthly meetings with an assigned probation officer (PO)
• avoiding committing new crimes
• obeying court-ordered travel restrictions, and
• any other terms the court deems appropriate

Failing to abide by these restrictions and requirements can lead to your immediate arrest and a probation revocation hearing.

Underage Marijuana DUIs 

Minors under the age of 21 face harsh and immediate consequences for driving high.

The first offense for marijuana UDD (underage drunk/drugged driving) is a Class A traffic infraction. Penalties for UDD are:

• a 3-month license suspension
• $100 dollar fine
• Up to 24 hours of community service

Subsequent offenses by minors can result in longer license suspensions in addition to the fines and community service. Unlike adults, minors cannot go before the DMV to petition to have their driving privileges restored with a restricted license.

UDD School Disciplinary Penalties 

Underage drivers must worry about more than the criminal consequences of a marijuana DUI. High school and college students face swift and severe penalties by their schools. In fact, these punishments can come down even faster, and include:

• suspension from extracurricular activities, such as sports
• suspension or even expulsion from college
• loss of scholarship or financial aid funds
• academic probation
• mandatory drug/alcohol counseling

Why it’s Important to Get Your Child a Lawyer for Underage DUIs 

It can be daunting trying to navigate simultaneous criminal and school interdisciplinary proceedings. However, an experienced criminal defense attorney can defend underage clients in both forums. A good lawyer can ensure that your underage student’s rights and education are protected.

Face Your Marijuana DUI Charge With an Attorney at Your Side 

Robinson & Henry’s experienced team of criminal defense attorneys can help you navigate Colorado’s DUI criminal process. Our priority is what’s in your best interest. We can go over the specifics of your case and decide how best to proceed. Act quickly if you’ve been charged with DUI. Call us at 303-688-0944 for a case assessment.