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Can You Get Charged for Driving While High?

Posted by David Holland | Mar 16, 2022 | 0 Comments

Can You Get Charged for Driving While High

Can you get charged for driving while high? Yes, anyone who uses marijuana, legally or illegally, and then operates a motor vehicle risks a marijuana DUI charge. In every state in the US, it is illegal to drive while under the influence of marijuana, while charges and how they are proven vary by state. Understanding the laws and how they apply in each state is crucial for those who use cannabis for medicinal or recreational purposes. Understanding the state and federal laws regarding marijuana use are some of the first steps in protecting yourself against charges. 

Marijuana DUI Laws Vary by State

Marijuana DUI laws vary by state, with some issuing a per se marijuana charge and others an impairment charge. The differences occur in how law enforcement proves a driver is under the influence.

Per Se Marijuana Charge

A Per Se marijuana law requires proof that a certain amount of THC is present in the blood of the person suspected of driving under the influence. Therefore, law enforcement typically must obtain blood test results verifying the driver was over the legal limit of THC to convict a driver. 

A driver's ability to drive doesn't matter with a Per Se charge. Only the THC level matters for a conviction to occur.

Impairment Marijuana Charge

With an impairment charge, law enforcement must prove a driver's ability to drive was affected due to the use of a substance such as marijuana. These charges rest on a law enforcement officer's observation of a driver.

Observations of impaired driving may include:

  • Bad driving (swerving, erratic driving, driving too slow)
  • Poor performance during a field sobriety test
  • Slurred speech

New York Marijuana DWI/DWAI Laws

New York is an under the influence state, and law enforcement in New York is required to prove the driver was impaired due to driving under the influence. Per Se laws involving blood tests to verify THC levels are not applied in the state of New York.

When the State of New York Chooses to Prosecute

When prosecuted in New York, charges depend on several factors: If a driver is a first offender, a repeat offender, or if an accident with injuries was involved. Other circumstances may also affect the charges. 

The DMV provides a list of DWAI penalties in New York if convicted as a reference:

1st offense:

  • License suspension for six months
  • States Driver Responsibility Program: minimum $250 annual assessment fine totaling $750 over three years.
  • $500 - $1,000 fine
  • Up to one year in jail
  • Potential enrollment in the New York Drinking Driver Program and paying all associated costs.

2nd offense - penalties faced if a driver has another DWAI/Drugs offense within ten years of the first violation:

  • License revocation for at least one year
  • $1000 - $5000 fine
  • Up to four years in jail, with a minimum of five days in jail or 30 days of community service.
  • States Driver Responsibility Program: minimum $250 annual assessment fine totaling $750 over three years.
  • A class E Felony
  • Potential enrollment in the New York Drinking Driver Program and paying all associated costs.
-Have Your Rights Been Violated? Learn How a First Amendment Lawyer Can Help Defend Against Unjust Persecutions-


Marijuana Defense Attorneys are Needed

Laws from state to state vary and are poorly defined. Impairment and Per Se laws for marijuana use cannot be applied consistently from person to person. For example, impairment does not have a consistent definition from state to state, and some traces of THC may remain in a person's blood for weeks after use. 

Ambiguities surrounding marijuana DUI charges make a marijuana defense attorney essential if faced with a potential conviction. 

If you are in New York and have any questions regarding driving under the influence of marijuana, marijuana laws, or find yourself needing legal help due to a DWI/DWAI, please reach out to our office to consult with an experienced cannabis attorney.

About the Author

David Holland

As Executive Director of Empire State NORML and President of the New York City Cannabis Industry Association, David has been a leading advocate in the cannabis space for over 20 years. He has represented clients in marijuana related proceedings everywhere from traffic court to the United States Supreme Court, and he helped obtain clemency for five elderly prisoners servicing life without parole for marijuana. David also handles complex civil and criminal litigation in other areas including employment, First Amendment, and business.


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