Have you been charged with a marijuana OWI or marijuana DUI in Indiana? Indiana has been slower than other states in regards to the legalization of marijuana, and driving under the influence of a controlled substance, including forms of cannabis/marijuana and CBD that contain .3% or more of THC, is a serious charge. Even though the first offense of a DUI for weed may just be a misdemeanor, it can still involve time in jail, many hours of community service, court fees and fines, and suspension of driving privileges. If you are facing charges of a DUI while impaired, a marijuana DUI lawyer at Stracci Law Group can help you protect your rights.
Indiana DUI & OWI Involving Marijuana Laws
1.The use of marijuana can impair your coordination, judgment, reaction time, and ability to concentrate - all abilities needed to safely operate a vehicle. And while it is clear that marijuana can cause impairment - Indiana drinking and driving laws do not universally apply to driving high or operating a vehicle while impaired by marijuana or a metabolite of marijuana.
2. In 2021, Indiana legislature introduced a defense for people charged with driving under the influence of a controlled substance or its metabolite in their blood. Although weed is not legal in Indiana, the defense applies specifically to those charged with operating a vehicle with marijuana or a metabolite of marijuana in their system.
3. In Indiana, after an accident, every driver must be given a chemical test (which can be referred to as a DUI marijuana blood test). A person could test positive for THC even weeks after impairment, which could result in a felony charge (if they have a prior from the last 7 years or if there was an accident that involved bodily injury). Indiana lawmakers recognized that just because a driver has marijuana or a metabolite in their system, does not mean that they are impaired. Accordingly, drivers who are found to have marijuana or a metabolite of marijuana in their blood have a statutory defense available to them if they meet the following conditions: (1) the person was not intoxicated, (2) the person did not cause a traffic accident, (3) and the substance was identified by means of a chemical test taken pursuant to Indiana law.
- The test is administered following an accident that was not their fault
- The person tested positive for any amount of THC in his or her system (there is no lawful DUI THC level)
- They did not show signs of impairment.
If the conditions are met, the individual may have a valid defense to the charge of operating a vehicle with marijuana in their bloodstream.
How Do Police Test for Marijuana DUI Impairment?
When you smoke pot, the chemical component of weed - tetrahydrocannabinol (THC) will be in your blood and saliva. THC can remain in your blood for days and even weeks after smoking, long after you are impaired. Although there is no established consensus on what amount or concentration of THC causes impairment, there are a couple of ways police test for marijuana impairment.
SoToxa Oral Fluid Test
In December 2020, Law enforcement officers across the state of Indiana began using a new tool - the SoToxa Oral Fluid Test. This fluid test is used to test drug-impaired drivers for six kinds of drugs:
- Cannabis (THC)
In order to use the SoToxa Oral Fluid Test, officers must complete a training regimen that includes classroom training, a written assessment, and the psychomotor skill of collecting an oral fluid sample before using the test in the field. In order to use it, law enforcement must have both a reason to stop a motorist and suspect impairment. Officers must be trained by other law enforcement officers who are standardized field sobriety test instructions and have also completed Drug Recognition Expert (DRE) or Advance Roadside Impaired Driving Enforcement (ARIDE) training. The SoToxa test may be offered after a valid traffic stop is made and the officers suspects impairment after using standard detection techniques including standardized field sobriety tests.
Indiana drivers can refuse the SoToxa test. While the test can be used to establish probable cause to offer a blood draw chemical test, the results of the SoToxa test cannot be used in court as evidence of impairment. The SoToxa test can be confusing because people do not understand their rights and may not be fully understanding of marijuana DUI laws even when police are explaining them. Refusal to take a chemical test has consequences (driving privileges are suspended for one year on first refusal and two years for subsequent refusals) and can be admissible at trial. As of 2022, the SoToxa test is not considered a chemical test under Indiana Law.
If the law enforcement officer believes that they have probable cause to believe you were operating with marijuana or a metabolite of marijuana in your system, then they will likely offer you the opportunity to complete a blood draw chemical test. The officer must follow Indiana Implied Consent law before administration of the test. Indiana's implied consent law means if you operate a vehicle, you impliedly consent to chemical tests (Indiana Code § 9-30-6-1). If you do not submit to a test, it is considered a refusal (Indiana Code § 9-30-6-2(d)).
OWI & DUI Weed Charges and Penalties in Crown Point, IN
A marijuana OWI may also be referred to as a DUID (driving under the influence of drugs). You can be charged with a DUI in one of two ways:
- Per se DUID: Evidence of a schedule I or schedule II controlled substance in your system via a chemical test.
- Impairment DUID: The state’s evidence is a demonstration of your impairment, which may include the arresting officer’s observations, statements made, or evidence collected.
In addition to criminal charges, being charged with marijuana OWI in Indiana may also result in a suspension of your license from the Indiana Bureau of Motor Vehicles.
For your first OWI, if you took a blood test for purposes of a certified chemical test, the lab results will likely take weeks to complete. Your license may be suspended administratively for 180 days either after you are charged, if you’ve failed a chemical test through a breathalyzer, or after the lab results are provided, depending on the court you have been charged in. If you have a prior OWI conviction, the court is required to suspend your driving privileges for at least one year. If you refuse a chemical test and have a prior OWI conviction, you will be subject to a suspension of one (1) year or two (2) years. A weed DUI lawyer may be able to help you restore privileges to drive to work.
Criminal charges for drugged driving are typically:
- First Offense: Class C Misdemeanor, up to 60 days in jail and a fine of up to $500.
- Second offense: Level 6 Felony if the previous crime occurred within 7 years preceding the current violation. Level 5 Felony if the previous offense resulted in serious bodily injury, catastrophic injury, or death.
Additional penalties and penalty enhancers may be applied if minor passengers are in the vehicle (Indiana Code §9-30-5-3(a)(2)), or serious bodily injury or death results (Indiana Code § 9-30-5-4 and § 9-30-5-5).
The consequences of a marijuana DUI may seem overwhelming - but all hope is not lost. There are many situations where a person may have a strong defense based on the actions of law enforcement or qualify for the statutory defense listed above. It is always advisable to speak with a marijuana/cannabis DUI lawyer about your case, your options, and your best course of action.
NWI Cannabis DUIs & OWIs Possible Defenses
Marijuana OWI is different from alcohol DUIs - as you are not accused of having alcohol in your system. There is no breath test available to detect marijuana. Because marijuana can stay in your system much longer than alcohol, the presence of marijuana in your blood does not indicate that you were high. In addition to the statutory defense listed above, there are some potential defenses to a DUI weed charge:
- Police failed to properly administer a cannabis DUI test, also known as the SoToxa Oral Fluid Test
- The results of your marijuana DUI test through a chemical test blood draw were not accurate or the blood draw was not conducted properly under Indiana law.
- Law enforcement did not have a valid reason to conduct a traffic stop under Indiana law
- Law enforcement did not read you the DUI Indiana implied consent law.
When you hire a marijuana DUI attorney at Stracci Law Group, we will closely analyze the circumstances of your case to determine the best defense available.
How Stracci Law Group Cannabis DUI Lawyers Can Help?
Facing a marijuana DUI in Indiana is just as serious as an alcohol DUI. The effects of a DUI conviction can be far-reaching on your personal and professional life. If you are facing charges, a knowledgeable Indiana marijuana defense attorney at Stracci Law Group can help you in the following ways:
- Investigate your arrest and charges to assess any evidentiary issues
- Work with Indiana DUI and marijuana experts to find weaknesses in the prosecution's case
- Advocate for restoration of your driving privileges to go to work or get a job
- Work with prosecutors to explore a beneficial outcome to your case
If you are looking for a weed lawyer near you who understands the complexities of marijuana DUI cases, contact Stracci Law Group. We handle marijuana DUI cases throughout Northwest Indiana, including Hammond, Merrillville, Portage, and Schererville.