As States continue to legalize marijuana for medical and even recreational use, legislators must consider the effect on DUI statutes. Not only does it change the underlying theory of punishment, but it calls for a closer look at the “science” used to prove a person is DUI.
Andrea Roth, in her California Law Review article, The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness, notes that the legalization of marijuana alters the theory of punishment:
Before legalization, a number of states had passed "zero-tolerance" laws banning driving with any amount of any illicit drug in one's system. These laws were justified under a jurisprudence of prohibition; the state could legitimately criminalize driving under the influence because it considered the drug use itself morally blameworthy. But in those states that have wholly or partially legalized marijuana, prohibition is no longer a good fit as a theory of punishment. Voters have instead chosen to treat marijuana like alcohol.
Andrea Roth, The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness, 103 Calif. L. Rev. 841 (2015).
For many years, Georgia considered having any amount of marijuana metabolites in your system to be considered, in an of itself, under the influence of drugs, actual impairment was not needed, only proof that marijuana was consumed. The law did not carve out an exception for the legal use of marijuana, such as use in for medical purposes. Additionally, Georgia law has always (and still does) not allow a person to be under the influence to the extent that they are a less safe driver or “incapable of driving safely.”
However, under the old law, someone with metabolites of non-prescribed marijuana in their system could be found guilty of DUI without any evidence of impairment. The Georgia Supreme Court in Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999) held that this law unconstitutionally denied equal protection of the law. Now, the law is that the THC must render you less safe to drive
In Sandlin v. State, 307 Ga. App. 573, 707 S.E.2d 378 (2011), the defendant argued that the DUI law unconstitutionally distinguished between legal and illegal users of alprazolam (Xanex). OCGA § 40-6-391 (a) (6) provides that a person with any amount of marijuana or a controlled substance in his or her urine or blood can be convicted of driving under the influence. Under OCGA § 40-6-391 (b), however, a person who legally uses a controlled substance can only be convicted of DUI if that person "is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use." The Georgia Court of Appeals looked to Love and noted: “[t]he same result is warranted here because alprazolam is also a controlled substance that can be legally prescribed.” Id.
As the law is currently, Georgia DUI Marijuana Cases are tricky for two reasons. First, unlike DUI alcohol cases, which have a direct correlation exists between the amount of alcohol in the bloodstream and impairment, no such correlation exists in marijuana cases. Andrea Roth insists that lawmakers should not try to draw this correlation. She explains, “[i]n the marijuana context, single-car crashes and case-control studies are rare and, to the extent they exist, suggest no predictable relationship between THC blood levels and crash risk. In short, the illegitimacy of per se THC limits as an attempted analog to .08 percent is not a close call.” Andrea Roth, The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness, 103 Calif. L. Rev. 841 (2015).
Second, marijuana metabolites can show up on a blood test long after use. When the Georgia crime lab analyzes your blood, it usually looks for the metabolite THC, the psychoactive ingredient contained in marijuana. When you consume THC, your body breaks it down into molecules called metabolites. The THC metabolites start out as active, which have a psychoactive effect. Soon after become inactive, which have no psychoactive effect. Inactive metabolites remain in your body long after the psychoactive effect wears off. The problem is that the blood test does not always distinguish between active and inactive THC.
Lawmakers must consider these issues carefully when considering how new marijuana legislations will impact current DUI statutes. In the meantime, you can still be convicted of a DUI in Georgia even if you consumed marijuana in a State that has legalized its recreational use.
If you have been charged with DUI – Drugs, your case is not hopeless. Contact an experienced Atlanta DUI Attorney today. Atlanta DUI Attorney Richard Lawson is a former DUI Prosecutor with more than 20 years experience defending people accused of DUI drug cases throughout Metro Atlanta and North Georgia. Call 24 hours a day, seven days a week. We are here when you need us most.