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What you need to know about Marijuana and DUI in South Carolina

Can you be charged with DUI for driving under the influence of marijuana?
Yes, in South Carolina you can be charged with DUI for driving under the influence of marijuana. Under South Carolina Code § 56-5-2930, it is unlawful for any person to drive a motor vehicle while under the influence of alcohol, drugs or a combination of alcohol and drugs to the extent that a person’s faculties to drive a motor vehicle are materially and appreciably impaired.

One big difference in marijuana DUI cases is there is no inference level. In alcohol DUI cases in South Carolina, there is an inference level of .08 BAC. If you blow a .08, the jury can infer guilt on that and that alone.

This isn’t true of marijuana cases. There is no inference level in South Carolina. In states where medicinal marijuana is legal and/or states where recreational marijuana is legal are moving to inference levels or per se levels.

Some states have enacted laws that if a blood test reveals a certain level of marijuana, the jury can infer guilt. In other states, the laws are written in such a way that driving a motor vehicle with any level of marijuana in a person’s blood is unlawful, irrespective of if the person is impaired.

Why do police suspect you of driving under the influence of marijuana?
First, we start with the reason why law enforcement stopped a person. If it is a DUI case, typically the officer observes some sort traffic violation that leads him to believe the person is possibly driving impaired.

From my practice as a DUI lawyer in Greenville, South Carolina, here are common reasons why the police believe a person is under the influence of marijuana:

  • Odor of marijuana: the police smell the odor of recently smoked marijuana or raw marijuana.
  • Marijuana in the car: the police find marijuana in the vehicle.
  • Drug paraphernalia in vehicle: the police find drug paraphernalia in the vehicle.
  • Admissions: the person admits to the police he or she has recently smoked marijuana.

There are two other reasons why police may suspect marijuana impairment. First, the office making the stop is ARIDE trained or DRE trained. I won’t go into detail about ARIDE or DRE because this can be another blog dedicated to such training.

Basically, ARIDE (Advanced Roadside Impaired Driving Enforcement) and DRE (Drug Recognition Evaluation) certified police officers are specifically trained to detect drug-impaired drivers.

These are relatively new training curriculums that I don’t normally encounter in my DUI practice. I haven’t encountered an ARIDE case in my practice. I have encountered only a few DRE cases. I believe that South Carolina’s DUI statutory scheme is not conducive to DRE, and that’s why it is not used often. But, I do think that ARIDE and DRE cases are the future of DUI enforcement.

The final reason police suspect marijuana impairment is probably the most common, and I call it the “catch all reason.” And it is not limited to marijuana; it is drugs in general.

Here’s how it plays out:

The police officer pulls someone over for suspected impaired driving. The police officer administers field sobriety tests and the person fails the field sobriety tests. The police officer arrests the person for DUI and offers him a breath test. The person takes the breath test and either blows a .00 BAC or blows well below the inference level of .08 BAC. The officer believes that the person is impaired by something, so he asks the person to submit to a urine screen.

Testing for Marijuana
In most DUI cases, with the exception of Felony DUI cases, the police are going to test for marijuana with a urine screen. The officer must advise the person of her implied consent rights orally and in writing before taking a urine sample.

The individual has the right to refuse the urine screen; doing so will result in a six-month suspension of her driver’s license. If the individual agrees to submit to a urine screen, a medical professional will collect the urine sample.

Typically law enforcement will transport the individual to the hospital where a nurse will ask the individual to pee in a cup. The nurse will package the sample and return it to the officer. The officer will then transport the sample to SLED, where a SLED chemist will test the urine for the presence of marijuana.

Important things to remember:
In South Carolina, there are constraints to marijuana DUI cases. First, the non-psychoactive elements of marijuana stay in the system for a long period of time, so a person can test positive for marijuana long after they have ingested the drug. If the psychoactive elements are present in the sample, the levels do not necessarily correspond with impairment levels. And the field sobriety tests that are used to detect impaired drivers were created to detect alcohol impairment, not marijuana impairment.

If you’re charged with a marijuana offense, whether it is a drug crime or a DUI defense case, call John to discuss your situation.

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