The current DC DUI laws although provide details regarding alcohol consumption and corresponding penalties associated with BAC (Blood Alcohol Content)  — are silent on marijuana use, level thereof, and driving a motor vehicle while under influence of marijuana.

The DUI Statute clearly penalizes and provides minimum sentence for schedule I drugs:

Specifically the Statute provides:  A 15-day mandatory-minimum term of incarceration shall be imposed if the person’s blood or urine contains a Schedule I chemical or controlled substance as listed in § 48-902.04, Phencyclidine, Cocaine, Methadone, Morphine, or one of its active metabolites or analogs.

However there is no mention of marijuana use or penalties under the DUI or Operating While Impaired (OWI) Statutes.

The government making arrest for DUI-Drug marijuana has to establish at trial the driver was either under the influence or impaired. The evidence currently gathered by law enforcement has been through visual examination and observations and the field sobriety test.

However the field sobriety test as well as the VGN (“vertical gaze and nystagmus”) tests are designed to and accurate to detect alcohol use and consumption and are not scientifically tailored for marijuana detection and impairment.

This issue has given a rise to research and development for marijuana based breathalyzers tests and devices and currently a model developed by a California company is being implemented by the law enforcement for mass usage.

These detection devices are able to detect usage by measuring marijuana levels in the breath within two hours of use although cannot yet detect the levels of marijuana. The device measures THC the active ingredient and the device is a portable size similar to a mobile phone with an attached cartridge that captures air similar to a ballon.

Even after implementation of the marijuana or the pot breathalyzer devices, the government would still have the burden to show usage directly attributed to impairment or driving under the influence.

Until the devices are able to detect the amount of marijuana consumed with certain accuracy as the current alcohol breathalyzer machines, even with a dispositive chemical test, the government in most cases would have a lack of sufficient chemical test to demonstrate marijuana use was a contributing factors.

Again the field sobriety test, and the VGN test both can be challenged with regards to marijuana use and are not a scientifically accurate measure of marijuana use or impairment.

Refer to our Washington DC DUI page for more details on this subject.