How Are Marijuana DUIs Proven?

Written by: The Law Offices of Garrett T. Ogata

Your Rights After an Arrest for Driving Under the Influence of Marijuana

While the recreational use of marijuana became legal in Nevada several years ago, it is still unlawful to drive under the influence (DUI) or impaired by the substance. However, recent updates to the law changed how 1st and 2nd offense marijuana DUIs must be proven. 

At The Law Offices of Garrett T. Ogata, we represent individuals who have been charged with driving under the influence of marijuana in Las Vegas. Our lawyers can help fight the charges against you, working to protect your reputation and your freedom. If you were arrested for a Marijuana DUI, contact our office at (702) 366-0891 to schedule a free consultation. 

Can a Police Officer Pull Me Over for a Marijuana DUI?

In most cases, people are arrested for suspicion of driving under the influence of marijuana after a routine traffic stop. It begins when an officer pulls a person over for having a broken taillight, erratic driving, or another vehicle code violation. The officer, during the stop, smells an odor of marijuana or sees signs of impairment and then conducts an investigation to determine whether the person is driving under the influence.

A defense that may arise in a marijuana DUI case is that the initial stop was illegal. If there was not a valid reason for the officer to pull you over it may significantly help your case. It is important to discuss your case with an experienced criminal defense attorney to determine what defenses may apply in your case. 

How Is a Marijuana DUI Proven in Nevada?

To prove a person was driving under the influence of marijuana it must be shown that the person was impaired by the substance and unable to safely operate the vehicle. For a first and second-offense marijuana DUI, a blood test indicating that there was marijuana in the system is not enough. Impairment must be shown.

DUI impairment can be proven through:

  • Erratic or reckless driving
  • Failed field sobriety tests (FSTs)
  • Strong odor of marijuana emitting from the person or vehicle
  • Physical signs of impairment (red, bloodshot eyes or dilated pupils)
  • Inattention or short-term memory disruption

On a first and second-offense marijuana DUI charge, a prosecutor cannot rely solely on a blood test to prove impairment. 

What Is a “Per Se” Marijuana DUI?

Prior to 2021, a person could be convicted of a marijuana DUI solely based on a blood test showing 2 or more nanograms per milliliter of marijuana (delta-9-tetrahydrocannabinol) or 5 or more nanograms per milliliter of marijuana metabolite (11-OH-tetrahydrocannabinol). 

Referred to as a “per se” marijuana DUI, it was assumed that a person was impaired if they had these levels of THC or cannabis metabolite in their system.

Currently, however, for a first or second offense, a person may not be convicted of a “per se” marijuana DUI. Impairment must be proven through other means. Only on a third or subsequent offense within seven years could a person be convicted under this theory. 

Arrested for a Marijuana DUI in Las Vegas? Contact Our Office Today. 

Were you arrested for a marijuana DUI in Las Vegas? Contact our office at (702) 366-0891 to schedule a free, no-obligation consultation. Get the dedicated representation you need now.

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