Can You Get a DUI for Marijuana Use?

While marijuana laws have become lax in recent years, a "Marijuana DUI" can still get you in a lot of trouble.

By , J.D. · UC Law San Francisco
Updated July 26, 2022

The often tragic consequences and harsh legal penalties for driving under the influence of alcohol are well-publicized. What many people don't realize is that it is also illegal and punishable in all 50 states to drive under the influence of marijuana (or a combination of alcohol, marijuana, or other drugs).

Laws defining what it means to be "under the influence" of marijuana vary by state, as do applicable punishments.

Driving "Under the Influence" of Marijuana

Each state has its own DUI laws. And states define "under the influence" in a variety of ways. However, marijuana DUI laws generally fall into one of two categories: impairment and per se THC laws.

Marijuana Impairment DUI Laws

In most states, being "under the influence" means that the driver:

  • is incapable of driving safely due to the effects of drug or alcohol use, or
  • has a certain concentration of alcohol (.08% or more in most states) in his or her system.

In other words, a driver can be convicted of a DUI based on actual impairment from drugs or alcohol or the concentration of alcohol in his or her system. DUIs based on BAC are often called "per se" offenses.

In states that define "under the influence" in this way, only the impairment restriction applies to marijuana use. So, to get a marijuana DUI conviction, the prosecution must prove the driver was actually impaired by marijuana—not just that the driver had a certain amount of marijuana in his or her system.

Per Se THC and Marijuana Metabolite DUI Laws

The DUI laws of a few states contain per se provisions that apply to marijuana use. In states with these so-called "per se" DUI laws, drivers with a certain amount of marijuana in their system are considered under the influence.

States that have per se marijuana DUI laws generally specify a THC (the primary psychoactive metabolite in marijuana) or marijuana metabolite (more generally, compounds left over when the body metabolizes (or processes) limit. But there are also states that prohibit driving with any measurable amount of marijuana in the blood or urine. Drivers who are at or above the legal THC limit—whether it's a concentration or any measurable amount—can be convicted of a DUI.

Marijuana metabolites can remain in a person's body for days, weeks, or longer after marijuana use. While metabolites indicate that the person ingested marijuana at some point in the past, they do not indicate how long ago or necessarily point to current impairment. Even so, state per se laws that include metabolites accept their presence as conclusive evidence of impairment for the purposes of a DUI charge.

Per Se DUI Laws and Delta-8 THC

Delta-8 THC is a psychoactive substance that's found in marijuana, just not in significant amounts. (Delta-9 THC, in contrast, is abundant in marijuana.) However, product manufacturers are able to synthesize usable quantities of Delta-8 THC from CBD (cannabidiol) using solvents.

Lots of products—like gummies, brownies, and other edibles—containing Delta-8 THC are now available to consumers (though some states have banned Delta-8 products). Users of Delta-8 products typically experience effects similar to those associated with smoking marijuana or using Delta-9 THC products.

But can the use of Delta-8 THC products lead to DUI charges? There's no question that a driver could be charged with a DUI for driving while actually impaired by Delta-8 THC. Generally, impairment DUI laws apply to all intoxicating substances, which would include Delta-8 THC.

However, the application of per se DUI laws to Delta-8 THC is less certain. Some per se laws prohibit a certain concentration of "marijuana metabolites" (which would include Delta-8 and Delta-9 THC), but other per se laws apply only to Delta-9 THC.

Can Medical Marijuana Patients Drive When High?

Many states have made it legal to use marijuana for medicinal purposes, as long as the patient follows the law with respect to amounts, registration, and so on. But no state has gone so far as to say it's okay to drive after using medical marijuana, even when the patient has scrupulously followed the rules.

However, the laws of each state are different. Medical marijuana patients should consult with an attorney about how the law applies to their specific situation.

How Do DUI Laws Define "Driving"?

Most state DUI statutes consider someone to be a driver within the meaning of the DUI law when he or she is "in actual physical control" of the vehicle. This definition is broader than our common idea of "driving" or "operating" a vehicle.

Being in actual physical control of the vehicle can include being in control of a parked car. In determining whether a person was in actual physical control of a vehicle, judges and juries tend to consider a combination of factors, including whether:

  • the vehicle was on or off
  • the vehicle was moving or stationary
  • the vehicle was operable
  • the keys were in or out of the ignition (and whether the defendant even had access to the keys)
  • the driver was awake or asleep (was the defendant perhaps "sleeping it off" in a parked vehicle?)
  • there was any gas in the tank
  • the vehicle's gears were engaged, and
  • the defendant was in the driver's seat.

Whether you were in "actual physical control" comes down to the consideration of the specific facts surrounding your case.

Weed DUI Penalties

Specific penalties for DUI convictions vary by state, though all states impose some combination of the following to punish DUI convictions:

Within each state, the severity of the applicable penalties in each case usually depends on whether the offense was a first or subsequent violation, and aggravating factors may increase applicable penalties (see below).

DUI Aggravating Factors for Weed DUI Convictions

The following circumstances may increase the penalties that would normally apply to a DUI conviction:

  • prior offenses
  • a minor in the vehicle at the time of the offense (sometimes referred to as "child endangerment")
  • DUI while driving on a suspended license
  • DUI while driving a school bus
  • causing a traffic accident, property damage, bodily injury, or death, and
  • driving with particularly elevated alcohol or drug content levels.

Sentence Ranges and Mandatory Minimums for Marijuana DUI Cases

State statutes generally list the minimum and maximum fines, jail time, and license suspension periods for DUI convictions, and the judge gets to decide how to sentence the defendant within those ranges.

In all states, penalties increase for second and subsequent offenses. However, often there's a "wash out" provision—a rule that effectively makes a prior DUI of a certain age go away for purposes of enhancing subsequent sentences. For example, a mandatory minimum may apply to a current conviction only if the prior conviction was incurred less than five, seven, or ten years ago. When a prior has washed out, the subsequent offense is treated as a first offense for punishment purposes.

Get Legal Help for a Marijuana DUI Charge

Driving under the influence of marijuana is a serious charge, even if it is at the misdemeanor level. With this type of conviction on your record, your ability to obtain employment under certain circumstances may be limited. Insurance will become very hard to obtain and your premiums will surely go up. And as you now know, if you are convicted of a DUI again, you will face the possibility of enhanced punishments.

For these reasons, most people will benefit from the assistance of a good criminal defense attorney. Be sure the lawyer you choose has experience with DUI cases in particular—it's a subspecialty, and you'll want a local attorney who knows how these cases are handled by the prosecutors and judges who will be involved in your case.

Talk to a DUI Defense attorney
We've helped 115 clients find attorneys today.
There was a problem with the submission. Please refresh the page and try again
Full Name is required
Email is required
Please enter a valid Email
Phone Number is required
Please enter a valid Phone Number
Zip Code is required
Please add a valid Zip Code
Please enter a valid Case Description
Description is required

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you