Tl;dr: Drugs and cars still shouldn’t mix.
The legalization of recreational marijuana seemed to bring more questions than answers — especially when it comes to driving.
How high is too high to drive? Is the smell of marijuana in a car alone enough to get someone arrested on suspicion of a DUI? Can a passenger smoke in the car since they’re not behind the wheel?
The Copper Courier sat down with Russ Richelsoph, a partner at Davis Miles McGuire Garnder, PLLC, to get all the answers.
Can I drive while high?
In short, no.
“Just because it’s legal to consume doesn’t mean you can operate a vehicle while under the influence of it and not be subject to criminal prosecution,” Richelsoph said.
Proposition 207—the one voters overwhelmingly passed by 60% to legalize recreational weed—says that using or consuming marijuana is illegal while driving, flying, or boating.
“Don’t smoke and drive is essentially the message,” Richelsoph added.
However, it’s not that simple.
Prop 207 does allow the state Legislature to set a threshold on the active metabolites allowed in the bloodstream, similar to a limit on blood alcohol content “when scientific research on the subject is conclusive and the National Highway Traffic Safety Administration recommends the adoption of such a law.”
Research to determine how high is too high to drive has yet to be done due to federal restrictions on marijuana, so it could be years before there’s any official guidance.
It also doesn’t help that there’s not a convenient tool like a breathalyzer that can quickly measure the active compounds in marijuana in a person’s system if pulled over. Instead, officers will have to perform a blood draw to determine whether any psychoactive metabolites are present in the blood. If the driver refuses, the officer can then just get a warrant signed by a judge and the sample can be taken by force, if necessary.
And, since there’s no legal limit defined by the state, any weed could be considered too much to drive.
“Now [police and prosecutors are] going to have to prove your driving was impaired to the slightest degree by your consumption of marijuana,” Richelsoph explained.
Can I smoke in my parked car?
Smoking in a car—even if it’s parked—isn’t allowed.
“Prop 207—you can’t smoke in public places and you can’t smoke in motor vehicles,” Richelsoph said. “Just like you can’t consume alcoholic beverages in a motor vehicle, it is also illegal to smoke marijuana in a motor vehicle.”
It doesn’t matter if you’re just the passenger, either. It’s still illegal.
“I tell people, drugs and cars don’t mix,” Richelsoph said.
What if my car smells like weed?
Before the passing of Prop 207, police could search a car based on the smell of marijuana.
Things have changed a little bit now, Richelselph said. He said people likely won’t be subject to a vehicle search based solely off the smell of fresh marijuana. It’s legal for anyone over the age of 21 to possess up to an ounce of unconsumed marijuana in the car just like someone would drive with an unopened bottle of booze.
However, the odor of burnt marijuana is still a red flag for police. That smell alone could make the driver subject to a DUI investigation and get the passengers in trouble for smoking in a car, which, as mentioned before, is technically considered a public place.
“Don’t smoke and drive is essentially the message,” Richelselph said.
Have any questions about the ins and outs of recreational weed? Send them to firstname.lastname@example.org.