Lawmakers Consider Marijuana ‘Legalization’
State Senator Perry Clark (D-Louisville) introduced a measure that would allow recreational use of cannabis. What effect would such a law have on DUI drug offenses?
Much like similar measures in California and about twelve other states, BR 408 would allow Kentuckians 21 and over to possess up to one ounce of marijuana (about 50 joints) and/or five plants for cultivation; the proposal would also allow free transfer of the ounce or the plants and allow marijuana consumption on private property with the owner’s consent. Penalties for possessing more than an ounce or five plants, as well as smoking marijuana in a public place, would generally be lower than they were before, with simple consumption punishable by a fine only.
The Senate Licensing, Occupations, & Administrative Regulations Committee is currently considering the bill.
DUI Drug Crimes in Kentucky
State prosecutors bring most DUI alcohol cases under the per se section of 189A.010. Under this provision, the state does not need to prove impairment (loss of use of mental or physical faculties). Rather, the state only has to establish that the defendant had a BAC over .08. Since there is no BAC test for drug use, the procedure is a little different in DUI drug cases.
First, the prosecutor must prove, beyond a reasonable doubt, that the defendant had ingested a drug. Under Kentucky law, the “drug” could be any legal or illegal artificial substance. Theoretically, drivers could be arrested and prosecuted for driving under the influence of caffeine, nicotine, or even sugar. So, even if BR 408 passes, which is probably a longshot in the GOP-controlled Legislature, stoned drivers would still be at risk for DUI drug charges.
Next, the prosecutor must prove that the defendant was operating a motor vehicle. Typically under Kentucky law, a person behind the wheel is “operating” a motor vehicle, even if the car isn’t moving and possibly even if the ignition is turned off. This subject is especially touchy if the defendant was parked and waiting for someone or was sitting in the car to charge a device or make a call.
Finally, the prosecutor must prove impairment. Not all states add this third element, but Kentucky dies. Some drugs, like prescription painkillers or illegal street drugs, obviously impair driving skills. But marijuana is different, because the evidence is mixed, at best, as to whether or not cannabis impairs driving. Actually, according to the National Institutes of Health, people under the influence of marijuana might actually be better drivers, because they compensate for their impairment by being more careful.
DUI drug cases are different from DUI alcohol cases. For a free consultation with an aggressive criminal defense lawyer in Leitchfield, contact Attorney Gary S. Logsdon. Convenient payment plans are available.