Colorado is the first state to legalize recreational marijuana. The Department of Transportation is running a series of public service announcements as part of the “Drive High, Get a DUI” campaign. Colorado has reported approximately $3.5 million in revenue from the legalization of marijuana for the month of January, so Coloradans are definitely partaking.
The purpose of the ad campaign is to inform and remind drivers that driving while high will result in a DUI even though recreational marijuana is now legal. One ad shows a man installing a new TV and moments later the TV falls off the wall. The ad tells viewers that installing your TV while high is now legal, but driving to get a new one is not. This is not unlike a situation where a person has a valid prescription for a drug, but gets caught driving while under the influence of the drug. The fact that the drug is legal is not a defense to the DUI.
Colorado recently enacted a law that sets a presumptive level at which a driver is considered to be under the influence of marijuana. Critics of this presumptive level argue that people react differently to different levels of THC. Because of this difference, a person could be charged with and convicted of a DUI even if he or she is sober. The presumption is, however, rebuttable, so a good DUI attorney can put on evidence to show that despite the THC level, the driver was not under the influence. Some states, such as Washington, have a per se limit for THC, meaning if a driver’s THC level exceeds the limit, then the person is per se or automatically guilty of the DUI. The only option for a DUI defense in this situation is to attack the validity of the test itself. This is similar to the DUI per se law in Colorado which relates to alcohol.