Tulsa Attorney BlogPast Pot Use Can Be an Crime Under Oklahoma’s New Zero-tolerance DUI-D Law

Oklahoma metabolite DUI drugsPolice call it DUI-D. A new law that takes effect today, Oct. 1, 2013, makes it a crime for anyone driving in Oklahoma to have any detectable amount of marijuana in their blood, saliva, urine or “other bodily fluids.” Drivers on Oklahoma highways need to be wary. Police may soon be using new tactics to target drivers whether or not they are impaired.

Unlike Oklahoma’s current impaired driving law, the new metabolite DUI law doesn’t consider whether a driver is actually impaired. Nor does it resemble the state’s current alcohol DUI law, which sets a minimum level of alcohol in the blood beyond which a driver is presumed to be impaired.

Unlike metabolite DUI laws in a few other states that set minimum thresholds based on impaired-driving research, Oklahoma’s new metabolite DUI law sets no minimum amount of marijuana metabolites presumed to impair a driver. Oklahoma’s new zero-tolerance law now considers any scant trace of marijuana metabolites to be evidence of DUI.

The implications for drivers may be surprising. A driver traveling through Oklahoma who two weeks ago legally smoked marijuana in Colorado, or who has a medical marijuana card from New Mexico, Arizona or California may be charged with DUI in Oklahoma if trace amounts of metabolites are found in the driver’s blood. The driver could be cited days or weeks later, long after the effects of the drug have worn out.

Your Right to Remain Silent: Use It

To avoid prosecution, drivers who may have used marijuana in the recent past would best avoid mentioning their prior use to a police officer during a traffic stop. Any admission of recent use, even so long ago the driver couldn’t possibly be impaired, may provide police probable cause to arrest the driver and forcibly take a blood sample.

So far, the state has not put in place rules for testing blood taken from drivers accused of driving with marijuana metabolites in their system. Delays in implementing necessary rules could delay attempts to enforce the new metabolite-DUI law.

Once cases begin to show up in court, challenges are likely. Defense attorneys in several states have challenged laws that target drivers’ status as marijuana users rather than target drivers who are actively impaired. Defense attorneys may challenge laws that don’t provide equal protection to out of state drivers who legally smoked pot elsewhere then later drove through Oklahoma.

The new metabolite DUI law doesn’t name marijuana per se. Instead, it outlaws any trace amounts of any Oklahoma Schedule I drug. That list comprises drugs presumed by a state board as having no legitimate medical use. The list also includes bath salts and synthetic marijuana, along with heroin and several “designer drugs.”

The new law is codified at Okla. Stat. tit. 47 § 11-902(a) (2013)

The list of Oklahoma Schedule 1 Drugs is at Okla. Stat. tit. 63 § 2-204 (2013)

Free Consultation: Tulsa DUI Attorney

If you’ve been charged with DUI, DWI or DUI-D (driving under the influence of drugs) in Tulsa, contact the Tulsa DUI attorney at Wirth Law Office today for a free consultation. Contact Wirth Law Office’s Tulsa attorneys at (918) 879-1681 or toll free at (888) Wirth-Law. If you prefer written correspondence, you may submit a question through the form at the top right of this page.


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