Busted for Driving High in Oregon?

Legalization of marijuana does not make impaired driving legal

By Judy Malmon, J.D. | Last updated on January 19, 2023

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Legalized recreational marijuana in Oregon has made its use more common. But, as with alcohol, its legality does not make it acceptable or safe to operate a vehicle while impaired. That said, unlike with alcohol, which can be measured by blood alcohol content (BAC), impairment from cannabis can be a pretty tricky thing to assess accurately, efficiently or even-handedly. There is no breathalyzer for THC (the intoxicant in marijuana) levels and, even if there was, the drug can affect different people very differently. Under Oregon law, there is no “per se” or “zero tolerance” rule for driving under the influence, meaning that there’s no presumption of guilt based simply on the presence of a substance in your system. The law simply states that it’s unlawful for a person who is “under the influence of” any intoxicating liquor or drug to drive a vehicle. Consequently, a citing law enforcement officer must assess the actual impairment of a driver.

“Under the Influence”

There are any number of circumstances where a driver may be suspected of impaired driving due to marijuana use, including a traffic stop for a moving violation, a stop at a DUI checkpoint, or a stop for a vehicle-related issue, such as a broken tail light. In any of these circumstances, a police officer may come to suspect the driver is under the influence from smelling or seeing pot or paraphernalia in the car, or from observing the driving patterns or appearance of the driver. Any of these can be considered evidence of impairment, giving rise to an officer’s reasonable suspicion. A citing officer may perform a field sobriety test, or seek assessment from an officer trained as a Drug Recognition Expert (DRE) regarding a driver’s state. A DRE is trained to examine for specific signs of drug-related impairment, and their observations can be used as evidence to support a drug-related DUI charge. However, there is a significant question as to the accuracy of a DRE’s findings, making it critical that you have an experienced DUI attorney assist you if you’re charged with an offense. If arrested, the driver will be given a urine test to determine the presence and level of THC in their system (Oregon rarely uses blood tests, which is the only scientifically recognized way to test the amount of THC currently in one’s body). Under Oregon’s implied consent law, if you refuse to submit to being tested, you’ll automatically have your license suspended. The mere presence of cannabis metabolites in your urine, in conjunction with an officer’s reasonable suspicion of recent use, is enough to result in criminal charges.

Disputing Presented Evidence

Because the presence of THC remains in your urine for as much as two weeks after smoking or consuming, and there is no consensus as to what quantity would constitute impairment, the findings of a urine test don’t conclusively show that a driver was under the influence of the drug at the time they were driving. If you’re arrested for DUI marijuana, having an attorney assist you in challenging the evidence of impairment can make a huge difference to the outcome of your case. An attorney can raise challenges as to:
  • The conclusiveness of any test-related data
  • The manner in which the test itself was conducted and its results handled
  • The appropriateness of the traffic stop
  • Other procedural issues related to your arrest and the evidence presented
Penalties for a DUI for pot are the same as a DUI for alcohol. If it’s your first offense, you will be fined a minimum of $1,000. For subsequent convictions, your penalties increase to fines up to $10,000 and/or prison time. If you’re arrested for driving under the influence of marijuana, there’s a lot at stake. Don’t try to handle it on your own, talk to a reputable and experienced DUI defense attorney. If you’d like more general information about this area of the law, see our DUI/DWI law overview.

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