Contact Us for a Free Consultation 212-842-2480


Driving Under the Influence of Marijuana - What You Need to Know

Posted by David Holland | Apr 13, 2022 | 0 Comments

Driving Under the Influence of Marijuana

The legalization of marijuana use continues to develop throughout the US, with only three states remaining where the use of marijuana is entirely illegal. The rest of the country has state-by-state laws about marijuana use, with each state falling into one of the following categories:  

  • Medical use only
  • Severely limited use
  • Recreational for adults 

While many people associate DUIs with alcohol only, it is vital to understand that DUI laws extend to marijuana. While the laws are constantly evolving on a state-by-state basis, it's important to understand the laws in place currently in your home state. 

Driving Under the Influence of Marijuana - Basic State DUI Guidelines

DUI laws and subsequent consequences vary by state, with many having minimum jail time ranging from 24 hours to a couple of years. The severity of consequences is often increased based on a higher blood alcohol concentration or with an injury related to an accident.

Common penalties for a DUI charge include: 

  • Community service
  • Jail time
  • License suspension
  • Fines
  • Installing an ignition interlock device (IID)

One thing is consistent for every state: driving under the influence of marijuana is illegal. State DUI laws apply to a person with blood alcohol content (BAC) over 0.08 while operating a motor vehicle. 

Many states have “Per Se laws” that apply to marijuana and other controlled substances. 

Driving Under the Influence of Marijuana -  Per Se Marijuana DUIs

Per Se Marijuana laws prohibit drivers from being behind the wheel if they have a detectable amount of THC in their bodies exceeding the legal limit. Therefore, law enforcement officers must verify the amount of THC in a person's body, often done using a blood test.

Six states apply Per Se Marijuana DUI laws to determine impairment and consequences. Enforceable using the common DUI approach of BAC tests for drivers only with blood tests or oral fluid tests. At this time, only a few states have programs to screen drivers using oral fluid roadside tests, as their accuracy is still in question. 

Oral fluid and blood tests can prove problematic for some drivers who take these tests days or weeks following substance use. Traces of the controlled substance may still be present in their system even though they are no longer driving while impaired. 

Driving Under the Influence of Marijuana -  Impairment DUIs

Unlike a per se DUI, where blood tests or oral fluid tests verify the levels of alcohol or THC someone has in their system at a particular time, an impairment DUI must show that a person was impaired while driving. Law enforcement and prosecutors must prove slurred speech, erratic driving, or accidents.

Zero-Tolerance Laws

There are eleven states with Zero-Tolerance laws. Zero tolerance means any trace of THC in a driver's body is grounds for a marijuana DUI, including drivers who are no longer high and may have traces of THC leftover from use in recent days or weeks.

Driving Under the Influence of Marijuana in New York

In New York, Driving While Impaired (DWI) and Driving While Ability Impaired (DWAI) carries the same penalties as driving under the influence of any other banned substances. New York is an under the influence state, requiring law enforcement to show the driver was under the influence (impaired) when driving. New York state does not apply per se laws for driving while impaired. New York Vehicle and Traffic Law § 1192.4 makes it illegal to drive a vehicle while impaired by drugs, and according to the state, this includes marijuana. 

Federal DUI Penalties

Most DUIs occur under local and state jurisdiction; however, it becomes a Federal DUI when a DUI occurs on federal property. Consistent with state laws, a driver with a BAC of 0.08 or higher is considered impaired and can be charged with a DUI. 

Federal DUI penalties include:

  • Incarceration in federal prison for up to six months
  • Fines of up to $5,000
  • Probation for up to five years

New York DWAI Penalties

DWAI penalties in New York:

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.

It is essential to understand the laws of your state

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.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Contact Us Today

The Law Offices of David Clifford Holland, PC is committed to answering your questions about Cannabis Busniess Start-Up & Advocacy, Cannabis Law, Employment Law, First Amendment Law, Complex Civil Litigation and Criminal Defense in New York, New Jersey, Maryland, and beyond.

We offer a Free Consultation and we'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.

Office Location

Offices in New York City and Sullivan County
By Appointment Only