Marijuana

In a previous entry on this Blog, I wrote about the passage of new Nevada State laws legalizing personal use marijuana and the possession of less than 1 oz. of marijuana – – – and further discussed the difference between “impairment” vs. “per se” DUI laws.

Nevada, unlike many states, has passed “per se” DUI laws setting acceptable levels of the presence of a drug in one’s system, over which the law presumes the driver is too impaired to drive safely. In many states a driver who is alleged to be under the influence of marijuana typically can’t be convicted of a “per se” DUI. In those states, drivers are usually charged with a theory of impairment – – – wherein the prosecutor has to point to documented evidence that the driver cannot perform driving related tasks safely. The law requires prosecutors in these jurisdictions to show that marijuana consumption had an effect on the driver and not simply prove up the presence of a specific amount of THC in the driver’s system. Nevada commonly charges the “impairment” theory as their first theory of criminal liability in a DUI case. In Las Vegas and throughout the State of Nevada, prosecutors have the burden of proving the person charged (the Defendant) is impaired “to a degree that rendered him incapable of safely driving or exercising actual physical control of a vehicle.” (NRS§ 484C.105 (2016)). In the States that ONLY charge the impairment theory of Marijuana DUI there has been no need to take action in changing their DUI laws following the recent trend towards the decriminalization of marijuana.

Nevada is the exception to this general rule however. Nevada is one of the small number of states that have legislation on the book utilizing the “per se” DUI theory to DUI of marijuana. In Nevada a driver can be convicted of DUI simply by driving with a minimum concentration of the active agent in marijuana (“THC”) or the breakdown metabolite of THC in their system as detected through a blood test.

The selection of a new President of the United States was not the only big decision made by Nevada voters on Super Tuesday in Early November. Nevada voters, along with those in three (3) other states, Maine, California and Massachusetts, decidedly permitted ballot measures which served to do away with criminal eligibility for personal or recreational use of marijuana.

Eventually, when these newly enacted laws are cemented in place, the total number of States which have legalized Marijuana, will grow to Eight (8). This is in addition to our nation’s capital, Washington D.C., where citizens of legal age are permitted to legally possess and marijuana, even absent a prescription. These States are in addition to those which have enacted legislation allowing for the approved use of marijuana for medical purposes.

The creation of these new allowances under the law gives rise to many areas of conversation, from the legalities of farming and distribution to taxation and the like. The Clark County District Attorney’s office recently announced they would no longer prosecute possession of marijuana cases which would fall under the new law, even BEFORE it technically goes into effect.

As a Las Vegas DUI Defense lawyer however, the passage of this ballot initiative into law creates a whole new set issues within the Las Vegas community that most local drivers are not even aware of. It is my prediction that the passage of this law will either lead to a change in legislation as it pertains to Driving Under the Influence of Marijuana law in Nevada – – – or we will see a marked (if not drastic) increase in DUI Marijuana charges.

You may be asking, how does the legalization of personal use Marijuana affect Nevada DUI laws? The answer is really simple… most State’s, Nevada included, have changed their law of the possession and usage of small amounts of marijuana, but have made no fundamental change to the law related to driving under the influence. The fact is exceptionally important to know for Nevada drivers who intend to use small amounts of marijuana under the new law, even otherwise law abiding licensed drivers.

Here is how – – – in Nevada, as in almost every other state jurisdiction in the US, charges Driving Under the Influence (“DUI”) under two (2) very different theories. These different legal theories of liability are commonly referred to as the “impairment” theory and “DUI per se.” This difference in a criminal charge is the same as it is in the most commonly charged type of DUI, namely an allegation of being under the influence of alcohol.

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