Marijuana DUI: An Affirmative Defense

Pursuant to Indiana Code 9-30-5-1 there are three ways a person can be charged with operating while intoxicated. First, operating a vehicle with an alcohol concentration of .08 but less that .15. Second, operating a vehicle with a vehicle with an alcohol concentration of .15 or greater. Third, operating a vehicle with a controlled substance listed in schedule I or II of I.C. 35-48-2 or its metabolite. Marijuana is currently listed as a schedule I drug in Indiana

Prior to the law change, a person who was operating a vehicle could be charged with operating while intoxicated for having any amount of marijuana or its metabolites in their blood. This was true regardless of whether the person was intoxicated at the time of the stop or accident. Pursuant to the updated version of I.C. 9-30-5-1, effective June 1, 2021, the legislature has enacted an affirmative defense to operating with a controlled substance if four elements are met. First, the controlled substance is marijuana or its metabolite; second, the person is not intoxicated; third, the person did not cause a traffic accident; and fourth, the substance is identified by means of a chemical test pursuant to I.C. 9-30-7.

What is important to remember is that a person cannot be high while driving. This does not create an exception for operating while actively under the influence of marijuana. If the officer has reason to believe the driver is actively intoxicated, i.e. like the smell of burnt marijuana, smoke in the vehicle, or other signs of active intoxication, this defense may not apply.

If you or somebody you know has recently been accused of a crime or has questions about the criminal case process, contact the experienced criminal defense attorneys in Indianapolis at Banks & Brower, LLC. We are available at all times by calling us at (317) 870-0019 or by emailing info@banksbrower.com.  24/7/365