Marijuana/Controlled Substances

Controlled Substances OWI Attorney

Indiana has NOT legalized marijuana.  Regardless of whether you are a resident of a state that has legalized marijuana or not, you still may be charged with Operating While Intoxicated (“OWI”) in Indiana for operating under the influence of marijuana.

A person who operates a vehicle with a controlled substance listed in Schedule I or II of I.C. 35-48-2 or its metabolite in their body commits a Class C Misdemeanor.  Marijuana is considered a Schedule I controlled substance.  Other examples of Schedule I drugs are heroin, ecstasy, and LSD. Examples of Schedule II drugs are hydrocodone (Vicodin), cocaine, methamphetamine, methadone, hyrdromorphone (Dilaudid), meperidine (Demerol), oxycodone (OxyContin), fentanyl, Dexedrine, Adderall, and Ritalin.  It is a defense to this subsection that the accused person consumed the controlled substance under a valid prescription.

Unlike alcohol, the State is not required to prove that you had a certain amount of the controlled substance in your system, how long it may have been in your system or when you may have consumed the controlled substance.  Indiana is a zero- tolerance state when it comes to driving under the influence of marijuana or a controlled substance.  Marijuana metabolite can be detected in a person’s body up to a month after use; therefore it is possible to be convicted of this offense without being under the influence and weeks after the person last ingested marijuana.

A drug metabolite is a byproduct of the body breaking down, or “metabolizing,” a drug into a different substance.  In an OWI investigation, the police may obtain a search warrant requiring the driver to submit to a blood draw.  Metabolites are revealed in a blood test.  If someone has consumed marijuana or some type of drug like cocaine, PCP, or some type of medication, that drug usually breaks down into a subset of drugs that are considered metabolites. The process of metabolizing a drug is predictable and certain; everyone metabolizes drugs the same way, though not at the same rate.  Some metabolites stay in the body much longer than the parent drug.  When that is the case, a blood test has a higher probability of identifying whether a person consumed a drug by looking for the metabolites of the drug rather than the parent drug. The presence of a drug metabolite is a reliable indicator that a person used the “parent” drug of that metabolite.  THC is the active substance in marijuana.  However, the body quickly metabolizes the THC molecule into several metabolites with long chemical names.  According to some research, the length of time that the metabolites remain in the body can be more than thirty (30) days, depending on the frequency of use, the quantity of use, body mass index, hydration, metabolism, and method of ingestion.

There is a tremendous amount of debate about what is the best method to prove that a driver who is under the influence of THC is too intoxicated to drive. Blood alcohol content can be easily tested, and there is ample data about the correlation between the level of blood alcohol and driving skills.

Colorado, Illinois, Montana, Ohio, Nevada, and Washington have set legal limits for THC concentration in the blood. Though these states are using thresholds, the correlation between objective threshold levels of THC and impairment has not been scientifically supported.  There is no scientific standard for establishing impairment based on the amount of THC in the blood. In other words, there is no evidence that small concentrations detected by a laboratory can produce any impairment in a driver. The drug metabolizes very quickly, but remains in the body long after the effects have worn off.  This means that it may be a long time before we see any parallel between the way we police and prosecute driving under the influence of alcohol versus driving under the influence of marijuana. That is a battle for the legislature.

The battle in the trial court often lies in challenging the probable cause to obtain the blood draw at all.  Some police departments have started taking steps to uses roadside saliva drug tests comparable to the portable breath test (PBT). Two companies, Abbott and mLife Diagnostics, have developed devices that measure, within approximately five (5) minutes, whether THC is present in the body, using saliva swabbed from the driver’s mouth.  The devices do not measure how much of the drug is present but are being used by law enforcement to make a preliminary determination of probable cause to arrest a person and require the person to submit to a blood draw. The use of these types of devices is still under tremendous debate.  There are many unanswered questions about how reliable the devices are, to what extent they will generate false-positive results, and whether they will withstand constitutional scrutiny.

At Stracci Law Group, our attorneys stay abreast of the ever-evolving changes in the law. We are prepared to push the envelope and make novel legal arguments as it relates to the charge of operating under the influence of a controlled substance.  We do not limit our analysis to Indiana, but we look at other states and countries as guides to legal challenges. If you have been charged with operating while under the influence of a controlled substance, contact us today at (219) 525-1000 so that we can start fighting for you.

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