Driving High is Still a DUI: Nevada’s DUI for Weed or Marijuana Laws

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When it comes to driving in Nevada, you should know that driving under the influence of drugs is just as illegal as driving while under the influence of alcohol. This includes marijuana and other controlled substances like prescription medication. While recreational marijuana use has been made legal in Nevada, this does not mean that you can drive while impaired (DWI) by it.

Nevada law states that you can be arrested and charged with a DUI if your driving is impaired by drugs such as marijuana, prescription medication, or any other controlled substances. This means that even if the substance was legally obtained, you are still subject to the same penalties of a DUI.

If you or someone you know has been arrested for a DUI related to drugs, reach out to a knowledgeable DUI attorney immediately. The Defenders can provide you with the legal help and support you need. Our attorneys will review all of the details of your case and explain the various defenses that may be available in your specific situation.

Nevada Law on DUI and Drugs

In Nevada, a person can be arrested for driving under the influence of drugs if any amount of an impairing substance has had an effect on their driver’s ability. This includes illegal drugs as well as legal prescription medications and even certain over-the-counter drugs that may cause drowsiness or impairment.

There are two types of DUI: per se and impairment. Per se laws make it illegal to drive with a certain amount of alcohol or drugs in your system, regardless of how impaired you may be. For alcohol, per se DUI is over 0.08% for adults. If your BAC is over this threshold, you are in violation of DUI laws. For marijuana/weed, it’s:

Prohibited Substance	Blood Nanograms per Milliliter
Marijuana (delta-9-tetrahydrocannabinol)	2
Marijuana metabolite (11-OH-tetrahydrocannabinol)	5

Impairment DUI laws make it illegal to drive if the alcohol or drugs have had an effect on your ability to drive safely. This is based on the police officer’s assessment and observation of your driving and behavior. Other evidence can also be used such as dashcams or CCTV videos, etc.

Assembly Bill 400 (AB400)

Note, however, that AB400 changes how per se laws apply to marijuana limits.

Before, if you were over the limit, then you were automatically guilty of a DUI, even if there was no evidence that you were in fact impaired or driving unsafely. Now, AB400 makes it so that being over the limit is only considered when the DUI is a felony charge.

Why this new law is important?

Supporters of the bill contend that, as opposed to alcohol, marijuana can stay in someone’s system up to two weeks. Therefore, even if a person has not consumed cannabis recently and is not impaired at the time of driving, THC or its byproducts may still be detected during testing which can lead them to an unjustified conviction.

However, this doesn’t change the fact that if you are driving while impaired by any sort of drugs, whether it’s marijuana or other forms of controlled substances, you can be arrested and charged with a DUI.

But I Thought Recreational Marijuana is Legal in Nevada

It is true that recreational marijuana (and medical marijuana) use has been legalized in Nevada, but this does not mean you can drive while under the influence of it. Driving high is still a DUI and carries the same legal consequences that a DUI involving alcohol does.

The law still states that it is illegal to drive while impaired by any substance – including marijuana. It is important to keep this in mind if you choose to use recreational marijuana or any other controlled substances and then plan to get behind the wheel.

The consequences of being convicted of a drug-related DUI can range from fines to jail time and license suspension.

What Happens in Marijuana DUI Arrests

If an officer suspects that you are driving while impaired by marijuana, they will likely pull you over. After the stop, they will look for signs of impairment and may even administer a field sobriety test or other tests to determine if your ability to drive is impaired.

Other evidence and observations can also be used such as the smell of weed from your breath and/or the vehicle, red eyes, dilated pupils, rapid heart rate or breathing, and many more.

If the officer is uncertain, they may call a drug recognition expert (DRE) to the scene to help assess if you are impaired by drugs. This may include physical tests, an eye examination, and a urine or blood test.

If all this evidence points towards impairment, you will be arrested and charged with a marijuana DUI. Depending on the situation and your record, you may face additional fines or jail time as well.

Can I Refuse a Drug Test?

Yes, you have the right to refuse a blood or urine test. However, the officer will likely arrest you for refusing and use that as evidence of your guilt.

If you do take the test and are found to be above the legal limits of marijuana or any other prohibited substance per milliliter, then you may be charged with a DUI regardless of whether you were actually impaired or not.

As with alcohol DUI-related arrests, the police cannot force you to submit to these blood tests, at least not initially. If you (or the suspect) refuse, the police will need to get a warrant. Once approved, they can use “reasonable force” to administer the blood test.

Common Defenses to Marijuana DUI Charges

If you have been charged with a DUI related to marijuana, then you may still be able to fight it. Some common defenses include:

The Officer Did Not Have Probable Cause

The officer must have had probable cause to pull you over and administer the tests. This means that there has to be tangible evidence that suggests that you were impaired by alcohol or drugs. Without this, your lawyer may be able to get the charges dropped or dismissed.

The Test Results Were Contaminated or Inaccurate

Just because you tested positive for marijuana does not mean that you are automatically guilty. Your lawyer may be able to prove that the test results were either contaminated or inaccurate in some way, which could lead to a dismissal of your charges.

The Arresting Officer Did Not Follow the Proper Protocol

If the arresting officer did not follow proper protocol when administering the tests, then they may be in violation of your rights. For example, if the officer did not tell you that you have the right to refuse or if they administered tests without proper training, then your lawyer may be able to get the charges dropped or dismissed.

You Were Not Actually Driving While Impaired

If there is no evidence that you were actually impaired by marijuana, then you may have a good defense against the DUI charge. The symptoms of smoking weed are general and can be subjective. For example, red eyes can come from lack of sleep; the smell of weed in your clothes can come from being around other people smoking weed. An experienced DUI attorney can help you build a strong defense against the charges.

Remember: a valid medical marijuana card is not a defense to DUI or DWI.

Penalties for Marijuana DUIs

The consequences of marijuana DUI are the same for your “normal” DUI convictions.

• First DUI in 7 years
• Second DUI in 7 years
• Third DUI in 7 years
• Felony DUI
• DUI causing injury or death

It’s important to remember that arrests and charges are not final. They can be challenged in court. An experienced DUI attorney like The Defenders can help you with your specific situation.

Record Sealing for DWI

Sealing of records for DUI is possible in some cases.

If the conviction is a misdemeanor, you can petition to have it sealed 7 years after the case ends. If the conviction is a felony, however, that will stay on your record forever.

If the conviction was dismissed or thrown out, you can petition to have the records sealed right away.

Frequently Asked Questions