CBD Oil and DUI’s in Indiana

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Can Consuming CBD Oil Result in a DUI in Indiana?

As of July 1, 2018, the Indiana General Assembly has put into law language that allows for Hoosiers to possess cannabidiol (or CBD) oil for recreational use or dietary consumption.  Under Indiana Code (IC) 35-48-1-17.5, Hoosiers are allowed to possess “low THC hemp extract” products which are defined as being “derived from Cannabis sativa L.” OR “contain[ing] not more than 0.3% delta-9-THC (including precursors).”  In basic terms: CBD oil or products containing CBD oil that meet this definition are no longer considered controlled substances that can lead to criminal prosecution for purely possessing them.  End of story on the CBD front right?  Not exactly.

In the legal community, Indiana is known as a “Metabolite State” for purposes of Operating a Vehicle While Intoxicated or OWI charges.  This means if a blood draw for an OWI is performed and the results show that there are “leftovers” (or metabolites in scientific language) of a foreign substance with a traceable drug-based chemistry, that person can be subject to the per se charge for OWI with a controlled substance or it’s metabolite under IC 9-30-5-1; a Class C Misdemeanor that is subject to 60-days in jail and a fine of up to $500.00!  This can be true even if the metabolite in your body is the inactive compound (or the type that would not cause intoxication despite its presence in your system).   To most people this seems ridiculous, but it is in fact law in Indiana.

With the recent law allowing CBD oil in specific forms, including 0.3% delta-9-THC (the inactive metabolite of marijuana), does this mean someone can get charged with per se OWI?  The answer is not totally clear.  The new CBD law allows for these products to not be considered controlled substances, however the per se OWI laws under IC 9-30-5-1 consider the metabolite of a controlled substance to be enough for charges/a conviction, and delta-9-THC, in any amount, is a metabolite of marijuana (a controlled substance under Indiana law).

Certainly, if someone has taken a CBD product that contains the 0.3% delta-9-THC and finds themselves in the unfortunate circumstance of being accused of an OWI, they can produce such proof to negate the charge.  However, that would likely not be an absolute bar to the charge being brought forward (or conviction), but rather a defense to the charge for the finder of fact to ultimately decide.  Ironically, such an inadvertent requirement would be an unconstitutional burden shift on a criminal defendant as the ultimate burden rests upon the State of Indiana, and nothing under Indiana law allows for a rebuttable presumption that the metabolite is from anything other than a controlled substance.  Similarly, the fact that charges could be brought and that 0.3% delta-9-THC is specifically declared as NOT being a controlled substance, highlights the future appellate issues derived from the legalization of CBD oil and Indiana OWI laws.

If you or somebody you know has recently been convicted of a crime or has questions about the criminal case process, contact the experienced Indianapolis criminal defense attorneys at Banks 7 Brower, LLC.  We are available at all times by calling us at 317-870-0019 or by emailing info@banksbrower.com.