When People Are Charged With Marijuana DUI And Are Not High

Posted by Richard Lawson | Aug 28, 2014 | 0 Comments

People Are Often Charged With A Marijuana DUI While Not Being Impaired:

“I'm Not High Anymore”

Pittsburg Steelers running back, Le'Veon Bell, currently faces legal and NFL consequences after an officer stopped him last week for possession of marijuana and DUI. The events unfolded as DUI Marijuana cases typically do: The police stopped his vehicle, smelled marijuana, found marijuana in the car, arrested him, and requested a blood test to determine if marijuana was in his system.

Bell reportedly told the officer: “I didn't know you could get a DUI for being high. I smoked two hours ago. I'm not high anymore. I'm perfectly fine. Why would I be getting high if I had to make it to my game?”

Bell's case is far from unusual. Many of my DUI Marijuana clients voice the same concerns.  His case illustrates the problem of people being charged with DUI because of the consumption of drugs, regardless of actual impairment.  In fact, historically in Georgia, that was the law.  People were guilty because of use alone.

Will I Automatically Be Found Guilty of DUI If My Blood Results Come Back Positive For THC?

No. Under the old law in Georgia, if you tested positive for marijuana without having a prescription, you could be found guilty of DUI without any evidence of impairment. If you did have a marijuana prescription, you could only be convicted of DUI if the effects of the marijuana rendered you “incapable of driving safely.” The court in Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999) held that this law was unconstitutional because it denied those without a prescription equal protection of the law.  The Love case found that O.C.G.A 40-6-391 (a) (6) was unconstitutional because it required a finding of guilty for the mere presence of marijuana metabolites in a person's blood without the need to show actual impairment.

Under the law after the Love case, having marijuana in your system does not automatically mean that you are guilty of DUI. Instead, the state must prove that the marijuana rendered you less safe to drive.  There is not a "legal limit," for marijuana.  A driver must be impaired.  However, this is where things still gets murky.

To obtain a conviction for DUI-drugs, the prosecutor must prove beyond a reasonable doubt that being under the influence of drugs made you “less safe” to drive. The prosecutor must prove actual impairment. Thus, the mere presence of a drug in your system is not enough.

Understanding Your Blood Test Results:

Despite the change in the law, there are still issues with how the State proves whether you were less safe. In DUI alcohol cases, the officer can check your BAC. Your blood alcohol content indicates your level of impairment. In DUI drug cases, however, there isn't a quantitative drug amount associated with a known level of impairment.

When you consume marijuana, your body starts to breaks down the THC, which is the drug's most prevalent psychoactive component. Through the metabolizing process, the active component of the THC breaks into molecules called metabolites.

One of these metabolites is Hydroxy THC.  Hydroxy THC is psychoactive, meaning it has an affect on your brain. Another result of the metabolism process is an inactive metabolite called Carboxy THC. As an inactive metabolite, Carboxy THC has no affect on the brain. However, this metabolite can remain in your system for several weeks, and thus, it can show up in a blood test.

It is crucial to understand that testing positive for Carboxy THC merely indicates that you have consumed marijuana within the last few weeks. It does not indicate impairment.

Unfortunately, the Georgia Crime Lab tends to ignore this science when it analyzes your blood. Officers usually request a blood sample when they suspect someone of a DUI. The sample is sent to the Georgia Crime Lab, and the results are either positive or negative for THC. The results do not distinguish between Hydroxy THC (which affects the brain) and Carboxy THC (that does not affect the brain). Still, the prosecutor will try to use these test results to prove that you were impaired.

The crime lab report will only render the Carboxy THC, and the crime lab witness will then come to court and dishonestly testify that based on the quantity of non-impairing Carboxy THC in the blood it equates to a level of impairment.  They do not even bother to check for the Hydroxy THC because they just don't care to get it right.  The Georgia crime lab simply does not care if a person is guilty or not.  They are advocates for the state, not scientists.  The testimony they give in DUI marijuana cases has NO BASIS IN SCIENCE.

Protecting Yourself:

The moral of the story is that if you consume any drug, even legally in Colorado, Washington State, or in Amsterdam, and you come back to Georgia and get in a car accident, the State will accuse you of being impaired. If that car accident results in death, you can be charged with a felony based on junk science. The same goes for prescription drugs. Prosecutors will argue that multiple prescriptions, when mixed together, have an impairing affect. The problem is that they can make this argument without any scientific basis.

Georgia's unreliable testing practice is one of the reasons that we suggest you ask for an independent test of your blood to ensure that they test for active metabolites. If you do this, it is crucial that you ask for a test that includes chain of custody so that you can use it in court. Georgia Rules of Evidence require you to prove chain of custody and to present testimony of the people who handled your blood in order to use an independent blood test.

If you have been charged with DUI – Drugs, your case is not hopeless. Contact an experienced Atlanta DUI Lawyer today. Atlanta DUI Attorney Richard Lawson is a former DUI Prosecutor with more than 20 years experience defending people accused of DUI throughout Metro Atlanta and North Georgia. Call 24 hours a day, 7 days a week. We are here when you need us most.

About the Author

Richard Lawson

Managing Partner at Lawson & Berry:


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