MARIJUANA (Pot) DUII FAQS – Once Marijuana (Pot) is legalized in Oregon – July 1, 2015 (Measure 91)

Q: Does Oregon’s new law (Measure 91) allow for me to smoke marijuana and drive a car?

A: Measure 91 does not change current DUI law. Driving under the influence of marijuana is a DUI, so if you are negatively affected, either mentally or physically, by the use of marijuana, and driving a vehicle, you can be arrested for a marijuana-based DUI.

Q: How much marijuana can I smoke and still drive?

A: This is a great question, but there is not an easy or straightforward answer. The short version is that each person will have their own point where they cannot legally drive after using marijuana, but Oregon hasn’t adopted a specific scientific test of blood or urine to establish an exact ‘line in the sand’ for marijuana use like the .08 BAC standard that exists for alcohol-based DUI charges.

As with alcohol, it is not illegal to have a drink or use marijuana and drive a car, unless that drink or marijuana use makes you impaired. The legal standard of ‘impairment’ for a DUI, whether alcohol or marijuana, is whether a person is adversely affected to either a noticeable or perceptible degree by the use of the intoxicant. This means you can be arrested for a marijuana-based DUII if an officer believes you are not as sharp, mentally or physically, as you would have been if you had not used marijuana.

Q: How long should I wait after I have smoked marijuana before I can drive legally?

A: This is another great question without an exact answer. Every person is different and there are many varieties and strengths of marijuana. There is no precise timing involved other than, under the law, you should not drive if you are “adversely affected to a noticeable or perceptible degree.” A good rule of thumb is if you have smoked marijuana, you should not be making a decision for yourself or others about your ability to safely drive. If there is a question as to whether you should or should not drive, the safer option is always not to drive. While it may seem extreme, police scientists have testified in Oregon that the impairing effects of marijuana can last up to 24 hours after consuming.

Q: What tests can I do to make sure that I am ok to drive?

A: The best practice in determining whether you are ok to drive is to simply avoid driving if you have consumed marijuana in the last 24 hours. There is not a single test that gives you a yes or no answer. When police investigate a possible DUII for controlled substances they administer multiple tests to create a bigger picture for them to work with. This can include checking your pulse rate, blood pressure, and body temperature, as well as testing your balance and ability to follow instructions. Police often test your eyes to see if the pupils are reacting normally in different lighting conditions.

Some officers will testify that a person under the influence of marijuana will have a difficult time in crossing their eyes (to check this, an officer will have you follow his finger with your eyes as he moves it in a circular pattern for a brief time and then bring his finger to the bridge of your nose – he is looking to see if your eyes are able to cross at that point), however, this test is far from perfect.

Q: Are there differences in effects from marijuana when it is eaten rather than smoked?

A: Yes, both in the euphoric/medicating effects as well as how the body stores the metabolites of marijuana that can be detected for investigatory purposes.

Q: Can I smoke marijuana in a car if I am not the driver?

A: Probably not. Driving a car on a public road is considered under the law “in public” and Measure 91 does not allow for marijuana consumption in public.

Q: Can I smoke marijuana on a boat?

A: No. Waterways, lakes, rivers, ponds, the ocean, are likely to be considered a public place and consuming marijuana in a public place is a violation of law.

Q: How do officers first determine that I am under the influence of marijuana?

A: There are many variables associated with determining that you are under the influence of marijuana and every case is different. Odor of marijuana is a common factor that police encounter at the beginning of their interactions. Odor is tricky because sometimes you can become so used to the odor that you no longer smell it and don’t even realize that you smell like marijuana. There are also physical signs in your eyes (typically a reddening of the eye towards the underneath portion of the eyelid) that can be a signal that you are under the influence of marijuana. Your demeanor can also be a factor. In court, officers often describe the effects of marijuana as an outwardly slowing of movements and coordination while the brain activity and thought patterns are sped up. I have heard officers testify that the effects of marijuana are observed as a quiet demeanor on the outside with a party going on inside.

Q: How do officers investigate DUII if it does not involve alcohol?

A: There is a protocol law enforcement uses to evaluate whether a person is under the influence of substances that are not alcohol. DUII law has always considered elicit substances as one form of a possible DUII. Typically, there the protocol has 12 steps that police follow in investigating a non-alcohol DUII. The police examine an assortment of psychological, physical, medical, balance and memory tests during this protocol, referred to as a drug recognition evaluation, or DRE.

Q: Is there a difference between a urine test and a blood test for purposes of marijuana detection?

A: Typically in Oregon DUII investigations, urine tests are used more frequently than blood tests for the detection of controlled substances. Urine tests show past use of a substance, but at this time urine tests do not specify if a person is currently under the influence of that substance, when a substance was taken, how much of a substance was taken, or even whether the effects of that substance are currently active. Blood tests, on the other hand, can, determine whether a substance is active in the person and how much of that substance is actively affecting a person. At this time blood tests are used much less than urine tests in Oregon

Q: Do I have to be “stoned” to be guilty of DUII by marijuana?

A: No, for several decades Oregon law has directed that “under the influence” does not require proof of being “drunk” or “stoned”. Rather, Oregon law requires that no one drive a vehicle if they are “adversely affected to a noticeable or perceptible degree by the consumption of certain medicines, controlled substances and/or alcohol”. “Adversely affected” does not necessarily require that a person is “drunk” or “stoned” just that they are affected in a way that is detectable from another person’s perspective.

Q: Is there a test for detecting levels of marijuana like a breath test in an alcohol based DUII?

A: Not currently. Other states have decided to use a measurement from the blood as a default for the definition of “under the influence”. For example, there are a few states that have determined that 5 nanograms of a particular marijuana metabolite is the line, just like a 0.08% BAC acts as a default for deciding that a person is under the influence of alcohol, but Oregon has not adopted this.

Q: Can I travel in a car with marijuana if I’m not using it once it becomes legal recreationally?

A: Since the inside of a traveling car could be considered to be in a public place, Measure 91 allows for the possession of up to one ounce of marijuana in public places. It is still illegal to consume marijuana in a public place though.

Q: Do I have to consent to a search of my car if a police officer asks to search it?

A: You do not have to consent to a search of anything, including yourself or your belongings. However, you may not actively resist or put effort to preventing a search.

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