suhrelaw | September 21, 2018 | OWI Defense

WARNING: Possession of Marijuana is still a crime in Indiana. If you have a medical marijuana card from another state, this card is NOT a “Get out of jail free” card!

As seen in the new recently, several states have passed new legislation regarding the use of marijuana, including recreational use. While states have begun to make decisions regarding how they will treat marijuana use, the Federal government still considers it a crime to possess any marijuana, with a few exceptions. Currently, Possession of Marijuana is still considered a crime in Indiana. However, with other states allowing its residents to use and consume marijuana, more and more people who either live in or travel through Indiana are being affected by these circumstances.

Differing states have differing views in regards to driving under the influence of marijuana, with some states treating such a charge much harsher than others. Unfortunately, Indiana is considered a “no tolerance” state, meaning having any amount of marijuana in your system while you are driving can establish that you were “driving under the influence of marijuana”.

While most people are familiar with the legal limit of .08% for blood alcohol content, most people are not aware that they can be charged with DUI/OWI, even after several weeks had passed since the last time that person smoked/consumed any marijuana. If you are pulled over in Indiana and are requested to submit to a certified chemical test, the test will typically look for both the active ingredient in marijuana (the stuff that actually makes you “high”), along with marijuana metabolites. Metabolites could remain in a person’s system for about a month. Those metabolites have little or nothing to do with the “high” effect most people look for when using marijuana. Yet, if any metabolites are found in your certified chemical test, you most likely with be charged with a DUI. At that point, the prosecutor would not need to provide any evidence that you were under the influence at the time you operated your vehicle; they would only need to prove that you had the marijuana metabolites in your system.

Now, someone like yourself might think that the best way to avoid them finding any metabolites in your blood is to not give any blood in the first place. If law enforcement requests a blood test from you, you do have a right to refuse. However, if you do refuse, you will be facing a one-year license suspension, where you will not be allowed to drive at all! On top of that, even if you refused, the arresting officer will typically apply for a search warrant to obtain a sample of your blood. Once the search warrant is granted by a judge or magistrate, the police will then have the right to draw your blood, even against your will! They can literally strap you down to forcibly draw your blood.

So, after you refuse, chances are you will not only be facing a 1 year license suspension, but your refusal will not have prevented the police from obtaining a sample of your blood. They can now test for your blood for marijuana and its metabolites, amongst other things. If metabolites are found in your blood, you could very well be convicted of DUI, even if you were not even high at the time of operation.

A first offense OWI/DUI is punishable by up to 1 year in jail and up to $5,000 in fines. If you have had a prior OWI/DUI (whether in Indiana or not), you will be facing a mandatory 10 days in jail, if you are convicted. If you have had 2 prior OWI/DUI convictions, the mandatory jail time increases to 20 days in jail.

For those who live outside the state of Indiana and are in possession of medical marijuana cards, the card is NOT a “Get out of jail free” card! While multiple states have made it legal to use marijuana for medical purposes, having that medical marijuana card will not stop you from being charged with OWI in Indiana. You will be taking a chance by driving through or in Indiana. Make sure you are aware of the state laws for any and all states you will be visiting to make sure you are in compliance.

Marijuana OWI charge: Indiana Code 9-30-5-1

Sec. 1.

1. A person who operates a vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of alcohol per:
   1. one hundred (100) milliliters of the person’s blood; or
   2. two hundred ten (210) liters of the person’s breath;
      commits a Class C misdemeanor.
2. A person who operates a vehicle with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per:
   1. one hundred (100) milliliters of the person’s blood; or
   2. two hundred ten (210) liters of the person’s breath;
      commits a Class A misdemeanor.
3. A person who operates a vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s body commits a Class C misdemeanor.
4. It is a defense to subsection (c) that the accused person consumed the controlled substance under a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner’s professional practice.

According to Indiana Code 35-48-2-4-d-31, Marijuana is considered a Schedule I controlled substance.