Can I be Charged just for Driving with Marijuana in my System in Indiana?

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Marijuana legalization has surged around the country, including in states surrounding Indiana.  Many people who utilize marijuana legally outside the state often have concerns about whether they could be charged with and convicted of an operating while intoxicated offense in Indiana based solely on the presence of marijuana (or its metabolites) in their blood.   

Indiana law currently criminalizes operating a vehicle with a controlled substance listed in schedule I or schedule II or its metabolites in the person’s blood.  This offense is a Class C misdemeanor, the same level of offense one would be charged with for having a blood alcohol concentration of at least .08 but less than .15.  Because marijuana, or more specifically THC, can be detected in blood for days or weeks after use, it is possible for someone who previously used marijuana to have it show up in a blood test much later on. 

In theory then, it would be possible for someone who is not impaired to be charged with and convicted of operating with a controlled substance or its metabolites in the person’s blood.  The police would, of course, need a reason to get a blood draw before this could become an issue.  But it can and does happen.

Fortunately, in 2021, our General Assembly created a defense applicable to certain situations where one would previously have been subject to prosecution for such an offense.  This defense is found in Indiana Code 9-30-5-1(d).

So what is the defense, and when is it available?  First, the defense is limited to marijuana or a metabolite of marijuana.  After marijuana is consumed, the body begins breaking down THC, the psychoactive component, into various metabolites which are also detectable in blood.  It is these metabolites which can linger in the blood for long periods of time, and potentially appear in a blood test even though the person is not actively under the influence of THC. 

Let’s assume THC or metabolite is found in a person’s blood, what else is required for the defense to apply?  The next requirement is that the person was not intoxicated.  But what does it mean to be intoxicated?  Indiana law defines intoxication as being under the influence of alcohol, a controlled substance, another drug, or some combination, such that there is an impaired condition of thought and action and the loss of normal control of an individual’s faculties.  To put it in plain English, it means being under the influence of some drug which affects a person’s normal thoughts, actions, and abilities.  Intoxication can be demonstrated in many ways, such as unsteady balance, slurred speech, and poor manual dexterity. 

Assuming the person with THC or metabolites in the blood is not intoxicated, what else is required for the defense to apply?  The third requirement is that the person did not cause a traffic accident.  This one is pretty self-explanatory, although issues could arise if there is a dispute about who caused a traffic accident.  But assuming this person did not cause a traffic accident, we can move onto the fourth and final requirement of the defense. 

The final box that needs to be checked requires that the THC or metabolite was identified by means of a chemical test taken pursuant to Indiana Code 9-30-7, sometimes referred to as fatal/serious bodily injury implied consent.  In Indiana, a person who operates a vehicle impliedly consents to submit to a portable breath test or chemical test (meaning a certified breath test or blood draw) if he or she is involved in a crash resulting in death or serious bodily injury.

When a fatal or serious bodily injury crash occurs, a law enforcement officer must offer a portable breath test or chemical test to a person believed to have operated a vehicle involved in the crash.  In practice, most officers will request a driver to submit to a blood draw.  And it is this practice which makes it possible for identification of THC or metabolites in the blood of a person who was involved in a fatal or serious bodily injury crash. 

Let’s turn back to our hypothetical driver.  The THC or metabolites were discovered pursuant to a blood draw done under Indiana fatal or serious bodily injury implied consent, and our driver was not intoxicated.  In addition, he did not cause the fatal or serious bodily injury crash.  All four requirements of the statutory defense are established, and he can avail himself of this defense should he be charged with operating with a controlled substance or metabolites in his blood. 

In a perfect world, a prosecutor would not file such a criminal case against our driver because of this statutory defense.  But should such a case be filed, the driver and his attorney would be able to assert this defense in fighting the case. 

Any time someone faces a criminal charge, the stakes are high.  But driving offenses also carry collateral consequences such as license suspension, and multiple driving convictions can lead to the loss of driving privileges for significant periods of time.  Thus, it is critical to hire an experienced Indianapolis criminal defense attorney to represent you and your best interests. If you have any questions, don’t hesitate to contact the attorneys at Banks and Brower at (317) 526-4630 or