CALL US NOWThe Ultimate Guide to Marijuana DUI
In 2020, recreational marijuana, also known as cannabis, became legal in Illinois. As a result, the laws surrounding marijuana usage have changed. But just because it is now legal, does not mean you can operate a motor vehicle while under the influence of marijuana. It’s common to think of DUI as referring to alcohol, but you can very much get a DUI for being under the influence of cannabis or other drugs.
In Illinois, the legal limit of THC within a driver’s system is 5 nanograms per milliliter (ng/mL) in whole blood. Similar to alcohol, it is not illegal to have marijuana in your system while driving, but it is illegal to drive if you have marijuana in your system that is above the legal limit. Additionally, it is illegal if you are showing signs of impairment to the point that you cannot safely operate a vehicle. It’s important to realize that every state has its own laws about cannabis, and what applies in one state may not apply in another.
Understanding Marijuana DUI Laws in Illinois
If you are under investigation for cannabis DUI, the way police determine whether you are above the legal limit is through a blood test, saliva test or urine analysis at the time of the arrest. As of today, there is no way to test if someone has consumed THC through a breath test.
In Illinois, you can be charged with DUI if the result of chemical testing indicates you have 5 nanograms or more of THC in whole blood. Additionally, you can be charged with DUI if chemical testing indicates you have 10 or more nanograms of THC in other bodily substances, such as urine.
Difference between active THC and Metabolites
Delta 9 Tetrahydrocannabinol or THC refers to the main ingredient within cannabis. This is the parent drug that is consumed. When a person consumes a substance, whether oral or inhaled, your body processes it and forms a new substance, known as a metabolite.
For THC, once it passes through your liver, it creates THC-COOH. Depending on the method of testing, they will look for either THC or its metabolite, THC-COOH.
Chemical Testing
Blood Testing
This method of testing tests for the presence of THC within your bloodstream. Cannabis remains detectable in the blood for 12 to 24 hours, however for frequent users it can be detected in the blood for up to 7 days.
Saliva Testing
Just like blood testing, this test looks for the parent drug of THC rather than its metabolites. The saliva test is generally less accurate than a blood or urine test but the advantage is that it can determine whether the person has smoked marijuana themselves or whether they were just exposed to secondhand smoke.
Urine Testing
Marijuana can remain detectable through this method for up to 3 to 5 days for occasional users, 1 to 15 for frequent users, and 1 to 30 days for chronic users. Unlike blood and urine testing, urine testing detects the metabolite, THC-COOH.
Key Legal Definitions
What exactly is an indicator of impairment? Illinois law defines impairment as a physical or mental condition that significantly limits a person’s ability to perform a major life activity, such as driving.
But what are the signs that indicate that a person is impaired by marijuana? There are many things that police officers look for:
- Delayed or Decreased Reaction Time
- Bloodshot or Glassy Eyes
- Poor Performance on Field Sobriety Tests
- Odor of Marijuana
- Slurred Speech
- Difficulty Following Instructions
- Admission of Marijuana Use
The Arrest Process
When you’re driving in Illinois, there are many reasons why the police might pull you over. Some reasons include:
- Drifting between lanes
- Driving too slowly or erratically
- Ignoring traffic signals
- Speeding
It’s important to note that the reason for the traffic stop needs to be valid for the officer to continue a possible DUI investigation. When fighting DUIs, an experienced marijuana DUI focused attorney will scrutinize the probable cause for the stop.
For example, if the arresting officer reports that he stopped the car because the headlights were not on, but the video evidence indicates they were, this can be a benefit to the defense.
During the stop, the officer will immediately start making observations. The officer will be looking for those indicators of impairments; anything that will corroborate their suspicions.
Once the officer has enough reason to believe you might be impaired, they will likely have you start performing field sobriety tests. Sometimes they won’t even ask you if you would like to submit to these tests but instead just start having you go through the instructions.
If the officer suspects you of drug impairment, there are additional field sobriety tests. They may use ARIDE (Advanced Roadside Impaired Driving Enforcement) or call in a DRE (Drug Recognition Expert) to perform those additional tests.
It is important to know that you are not required to complete any of these standard field sobriety tests.
Marijuana Field Sobriety Tests
During an investigation for a marijuana DUI, an over may try to put you through the following tests:
- Horizontal Gaze Nystagmus (HGN)
- Vertical Gaze nystagmus (VGN)
- Walk and Turn (WAT)
- One Leg Stand (OLS)
- Modified Romberg Balance
- Finger to Nose
Many of these tests are designed for you to perform the tasks while your attention is divided.
If the officer is a Drug Recognition Expert (DRE), they will likely attempt to give you a full examination which is similar to something a doctor may do. This may include:
- Eye Examination
- Check of your vital signs
- Dark Room examination
- Nasal and Oral Cavity Checks
- Examination of Muscle Tone
Once again, it is not required that you complete these tests. You have the right to refuse them.
Consequences of refusing a test
When it comes to alcohol-based DUI, there is no legal consequence for refusing standard field sobriety tests in Illinois. Of course, the officer may get frustrated with you. Of course, the officer may assume you’re under the influence. But you will not receive any extra legal charges or legal consequences for refusing field sobriety tests during an alcohol-based DUI investigation.
However, with marijuana-based DUIs, there can be a consequence.
If you refuse or fail to complete roadside chemical tests or standard field sobriety tests, your driving privileges will be suspended for 12 months.
On the other hand if you submit to chemical testing or standardized field sobriety tests that indicate impairment your driving privileges will be suspended for 6 months.
One caveat is that the officer needs to make it clear that they are conducting a cannabis-based DUI prior to administering field sobriety tests and/or chemical tests. They must fill out a Cannabis Warning to Motorist form indicating what the consequences are of refusing the chemical and field sobriety tests.
This is all good information to know, especially if you’ve already been charged with a Cannabis DUI. However, if you’re in a situation where you’re being asked to do Standard Field Sobriety Tests, just remember that it is not required that you complete these tests. You have the right to refuse them. And in most cases, it is safe to say that you should refuse them.
What are the penalties for a typical Marijuana DUI?
The penalties for a marijuana-based DUI are the same as an alcohol-based DUI. It’s still considered a class A misdemeanor, meaning you could be facing up to 12 months in jail and fines up to $2,500.
However, just like an alcohol-based DUI, a marijuana-based DUI can be a felony, also known as aggravated DUI, if one or more of the following occurs:
- This is your 3rd (or more) DUI
- You got a DUI while your driver’s license was suspended or revoked
- You got a DUI without a valid driver’s license or permit
- You got a DUI with a passenger that is under the age of 16 years old
- You got a DUI that caused serious injuries, great bodily harm or disfigurement
- You got a DUI without auto insurance
Will I lose my driver’s license after a marijuana DUI?
There are essentially 2 ways you can lose your driver’s license when it comes to a marijuana DUI. The first way of potentially losing your license after being charged is through the statutory summary suspension. This is where your driver’s license is set to be suspended 45 days following the arrest. If you refuse the chemical testing (and/or the field sobriety tests for a cannabis-only DUI), your driver’s license can be suspended for 12 months, however, if you fail the chemical testing (or standard field sobriety tests for a cannabis-only DUI), your license can be suspended for 6 months.
The second way is through the criminal charge of marijuana DUI. If you are convicted or found guilty, your Illinois license will be revoked. Exhausting all options of avoiding conviction is exactly what an experienced marijuana DUI focused Illinois attorney will focus on.
Long-Term Impacts
In Illinois, a DUI can carry serious long-term consequences that affect different aspects of your life. Two major areas that are impacted the most would include auto insurance and your criminal record.
Insurance
Getting a conviction on your DUI can adversely affect how insurance companies view your policy. On average you can expect your insurance premiums to increase by at least 30 percent for about 3 to 5 years.
Additionally insurance companies may turn you away from certain policies due to a DUI. Your current insurance provider may even decide to disqualify you from your current auto insurance policy.
Employment
A DUI can also negatively impact your employment. Depending on the field that you work in, your employer may conduct regular background checks and a DUI conviction can be a red flag. This can affect your current employment as well as future employment opportunities that require you to drive or have a clean criminal record.
If you have a professional license such as a nursing license, a DUI may jeopardize your standing with licensing boards. Professions such as law, medical, and education have strict regulations when it comes to criminal behavior and a DUI can result in disciplinary actions and even a revocation of your professional license.
Defenses against Marijuana DUI
Challenging the Traffic Stop
One of the first aspects of building a strong defense that an attorney will look at is challenging the legality of the traffic stop. For the initial stop to be lawful, the police officer must have probable cause. This means they need a valid reason to believe that you were breaking the law, such as swerving, speeding, or running a red light. If your attorney can prove that they didn’t have a valid reason to stop you then any evidence following the stop may be thrown out.
Accuracy and Reliability of the Chemical Tests
When conducting chemical tests, such as blood or urine tests, there is a procedure and standard that must be followed. Even in an ideal scenario, these tests are not always perfect. THC can stay in your system long after its effects have worn off, meaning you could test positive even though you aren’t impaired.
Odor of Marijuana
The mere smell of cannabis doesn’t conclusively prove recent use or impairment. We may argue that without additional concrete evidence of impaired driving, the charges are based on assumption rather than fact.
Under the Limit
We have seen many cases where a driver is arrested for consuming cannabis and driving. However, it is later revealed that the driver was under the legal cannabis limit.
Greater Than 2 Hours After Arrest for Cannabis Test
If a blood test is conducted more than two hours after the arrest, the results may not accurately reflect the client’s state at the time of driving. This time lapse can significantly affect THC levels in the body, leading us to challenge the test’s reliability and, consequently, the DUI charge itself.
How Does the State Determine if a Driver is Under the Influence of Marijuana?
In Illinois, adults over the age of 21 may purchase marijuana for recreational use from licensed state dispensaries. Marijuana users cannot smoke in public locations or while they are driving. However, there is no genuinely accurate way to measure a driver’s marijuana impairment level.
While the “legal limit” for alcohol is a blood alcohol concentration (BAC) level of 0.08 percent, the limit for THC (tetrahydrocannabinol, marijuana’s active ingredient) is 5 nanograms of THC per milliliter of blood or 10 nanograms of THC per milliliter of another bodily substance.
Intoxication from marijuana peaks about 13 minutes after use and stays intense for only about 45 minutes, but THC can be detected in a user’s blood and urine weeks later. Frequent cannabis consumers will always have some amount of THC in their blood, whether or not they are high.
What is a Drug Recognition Expert?
How will the police decide whether or not to charge you with marijuana-DUI? When an officer stops a driver and suspects the driver is impaired by marijuana, a DRE (drug recognition evaluator) may become involved. A DRE is a law enforcement officer who has received specialized training.
DREs are trained to identify drivers who are intoxicated by drugs other than alcohol or in addition to alcohol. The International Drug Evaluation and Classification program trains police officers as well as toxicologists and prosecutors on drug identification, categories, and processes.
What Can Happen After a DUI Arrest?
After an arrest for suspicion of DUI, a DRE may examine a driver if that driver is suspected of drug-impaired driving. The DRE looks for a heightened pulse rate, dilated pupils, the odor of marijuana, short-term memory loss, and other signs of marijuana intoxication.If an Illinois DRE determines that you were driving a vehicle under the influence of marijuana, you will be charged with DUI. However, the tests for driving under the influence of marijuana are relatively new and not as trustworthy as the breathalyzer and blood tests used for alcohol.
When Should You Contact an Attorney?
In or near the Chicago area, if you are charged with driving under the influence, call the offices of a Chicago DUI attorney at your very first opportunity. A number of defenses may be offered in a DUI case. Your attorney will offer the defense that is most appropriate in your own case.
In a marijuana-DUI case, your defense attorney may challenge the blood or urine test results or the officer’s conclusions about your level of impairment. Depending on the details of the case, other defenses – such as claiming that your rights were violated by the police – may also be available.
Can You Avoid a DUI Conviction?
Of course, the best way to avoid a conviction for driving under the influence is not driving at all. If you plan on drinking – or smoking marijuana – don’t drive. Arrange in advance for a rideshare service, a taxi, a designated driver, or a room for the night.
Still, if you make a bad judgment and you are charged with DUI, a Chicago DUI lawyer will bring your driving under the influence case to its best possible conclusion. The could mean going to trial and winning, negotiating amended charges. or may an agreement to receive court supervision.
In 2021, over 21,000 Illinois drivers were arrested for suspicion of driving under the influence. Many of those drivers were innocent. If you were not guilty of DUI, the right attorney may be able to get the charges dropped, dismissed, or win at trial to avoid a criminal conviction.
Why choose Driver Defense Team?
At Driver Defense Team, it is our objective to understand your needs and priorities. We have dedicated teams of legal assistants, case managers, and lawyers working together to get the best outcome for your situation.
A DUI can be an overwhelming experience, we know, because we’ve helped thousands of people get through this very situation that you are in now. As Illinois’s highest rated DUI law firm, there is no doubt that if you want the best outcome, Driver Defense Team is right for you.