Medical marijuana has been legal in Hawaii since 2000 and the state’s dispensaries have finally opened, but driving under the influence of marijuana can still land you in a lot of trouble.
According to Hawaii Revised Statute 291E-61, a DUI does not only apply to alcohol but “while under the influence of any drug that impairs the person’s ability to operate the vehicle in a careful and prudent manner.” However, there is a standard definition of what constitutes breaking the law when drinking and driving – blood alcohol concentration (BAC) of .08 percent or more. When it comes to cannabis, the rules aren’t so clear and drug tests can be inaccurate.
Drug Test for Marijuana
If you are suspected of driving under the influence of drugs, you may be given a urine or a blood test to determine if anything is in your system. A urine test does not look for the presence of the primary psychoactive in cannabis, tetrahydrocannabinol (THC), but can only detect the version of THC that has been processed by your body called THC-carboxylic acid (COOH). Since everyone metabolizes THC differently, researchers found that THC-COOH can be found in urine anywhere from 5-77 days. This means that even if your urine tests positive for THC-COOH, it does not indicate you are high at that moment, only that marijuana previously entered your body. It could have been days, weeks, or even a couple months from the last time you used cannabis.
Blood testing is the best way to tell how much cannabis is in your system at the precise moment of the test. When you inhale marijuana, cannabis becomes detectable in your blood in seconds. Cannabinoids, the active compounds in the plant, are absorbed through the lungs and pumped through the heart, entering the bloodstream. Edible cannabis is processed by the liver before entering the bloodstream, so THC and THC-COOH take longer to show up in your blood and could be around longer. A blood test can detect very small traces of THC in your blood, but it can also tell the difference between THC and THC-COOH.
Refusing to Take Breath, Urine, or Blood Test
If you are lawfully arrested by an officer who has probable cause to believe that you have been operating a vehicle under the influence, then under Hawaii’s “implied consent” law, you must be tested to determine BAC and/or drug content. A driver can choose to take a blood or breath test or both if suspected of alcohol intoxication, and choose a blood or urine test or both if suspected of drugs.
If you refuse to take a mandatory blood, breath, or urine test, you cannot be forced to do so but will lose your license for one year for your first refusal. For your second and any subsequent refusal, the court could suspend your license for 18 months to up to ten years. The state also requires you to be assessed by a certified substance abuse counselor. This counselor could recommend treatment for drug or alcohol abuse, which you would have to attend and pay for. (Hawaii Revised Statutes 291e-41 and 291e-65)
Per Se DUI and Impairment DUI
There are two types of DUI cases, depending on how the prosecution proves the driver was under the influence. A per se DUI uses the legal limit as evidence. The defendant can be convicted of a per se DUI if their BAC level is found to be .08 percent or over, regardless of whether they seemed impaired at the time. The thinking is that anyone who has a BAC of at least .08 percent is under the influence and shouldn’t be operating a vehicle.
Since Hawaii has not established a limit for cannabis, impairment DUI charges would apply when marijuana (or other drugs) are involved. With an impairment DUI, the prosecution focuses on how drugs or alcohol affected the driver’s behavior and capability to drive safely. Testimony of the arresting officer and circumstances of the case, such as chemical tests, field sobriety test performance, driving patterns, and general appearance of the driver at the time of the arrest, will help a judge determine whether or not a driver should be convicted of an impairment DUI.
Driving as a Medical Marijuana Patient
It should be noted that even if you have a medical marijuana card and are using marijuana legally as medicine, that does not mean you are allowed to drive with cannabis in your system. You face the same consequences as an illegal marijuana user or intoxicated driver.
When to Call a DUI Lawyer
If you have been charged with driving under the influence of drugs or alcohol in Hawaii, contact experienced DUI attorney David Sereno to discuss the facts of your case and help you decide on the best course of action.