Driving High: What Happens If I Get a Marijuana DUI?


According to the Indiana Criminal Justice System, arrests for Operating While Intoxicated (OWI) average about 20,000 a year, with 2019 reaching 23,343 arrests in the state. On average, most of the arrests are categorized as “alcohol or drug” related.

Operating While Intoxicated, or OWI, relates to any substance that causes impairment in the driver’s ability to operate the vehicle safely and according to traffic laws. The offense is also often referred to as Driving Under the Influence (DUI) or Driving While Intoxicated (DWI).

Indiana is also only one of 12 states that have yet to legalize medical marijuana, let alone recreational use of the substance. During the 2023 legislative session, it did legalize the use of low-TCH CBD oil, which is derived from industrial hemp. Other cannabis reform measures were introduced, but only one came to a vote and was rejected.

Indiana can still impose jail time for the possession of a single joint, punishable by up to a year of incarceration and a potential fine of up to $5,000 if caught a subsequent time. Of course, driving while under the influence of cannabis, or any other Schedule I or Schedule II drug falling under the Controlled Substances Act, can lead to an OWI or DUID (driving under the influence of drugs). Cannabis is still listed in Schedule I, the most dangerous category of drugs.

What happens if you’re pulled over for a suspected OWI and you’ve been smoking or consuming marijuana products? Unlike an alcohol-related OWI, there is no effective breathalyzer test for marijuana, and a drug test may not be conclusive, especially since cannabis can stay in your system long after you’ve consumed it.

If you’re facing an OWI based on marijuana usage in the Indianapolis area, you don’t need to go through the legal process alone. Contact Wruble Law LLC as soon as possible. Our criminal defense attorney can develop a compassionate yet strong defense to help you move forward from these accusations. The firm is proud to serve clients throughout all of Indiana, including Marion County, Hendricks County, Hamilton County, Boone County, and Johnson County.

Indiana Marijuana Law

Indiana still retains strict laws on marijuana possession and marijuana usage, not even allowing for the use of cannabis for medical reasons. Indiana statutes set somewhat strict penalties for even mere possession. Caught the first time, it’s a misdemeanor punishable by no more than 180 days in jail and a fine of up to $1,000. Subsequent offenses raise the penalties to up to one year behind bars and a fine of up to $5,000, but are still classified as misdemeanors.

However, if on a second or subsequent possession offense, you are found to have 30 or more grams in your possession, the charge rises to a felony, punishable by six months to 2 ½ years in prison, and a fine of up to $10,000.

OWI/DUI of Marijuana in Indiana

On July 1, 2021, Senate Bill 201 took effect, changing the standards by which a marijuana-related OWI or DWI would be assessed or charged. Previous to the act, it was a felony for any driver to have marijuana in their system, even if they smoked or consumed it days ago. Under the new law, drivers who do not cause an accident or do not show any signs of impairment will not generally be charged.

This is because, as referred to earlier, there is no breathalyzer test for cannabis, and traces of marijuana can stay in your system for days and weeks after consumption. This fact makes the results of a blood test fairly unreliable. The most likely way to be subject to an OWI marijuana arrest—outside of you causing an accident or injury—would be for the police officer to observe you driving erratically.

In 2020, officers across Indiana did start using what is called the SoToxa Oral Fluid Test. The SoTaxa device, like a breathalyzer, is a handheld instrument, but it collects and analyzes fluids such as saliva. Results come in minutes.

Drivers can refuse the test, and if they do take it, the results cannot be admitted in court—but the results can be used to order a chemical test. The SoToxa Oral Fluid Text is said to be able to detect:

  • Cannabis (THC)
  • Amphetamines
  • Benzodiazepines
  • Cocaine
  • Methamphetamine
  • Opiates

No matter what kind of test was administered when you were pulled over, if you’ve been accused of driving under the influence of marijuana, you need to reach out to a DUI attorney as soon as possible.

Legal Defenses to OWI

Like in any criminal matter, law enforcement and prosecutors must observe and respect your Constitutional Rights and established legal precedents. To start, officers must have probable cause to pull you over. They can’t pull you over just because they just don’t like how your car looks, for instance, or that you have your windows down and are listening to music they don’t like. For an OWI, you must do something that makes it appear you may be impaired.

Additionally, before police and prosecutors begin questioning you, they must read you your Miranda Rights, which warn that “anything you say can and will be used against you.” If there is no probable cause or your rights were not read to you, the case could be challenged as a possible violation of your Constitutional guarantees.

Another legal defense to OWI concerns blood tests. Blood tests could be subject to challenge based on the sample’s handling. Perhaps your sample was mixed up with another person’s sample as it changed hands. Prosecutors must show that the sample is accurate and belongs to you—in other words, they would need to show that custody of the sample was not violated.

Finally, remember that unless you cause an accident or injury—or exhibit signs of impairment— you likely won’t be charged for a marijuana-related OWI.

You Deserve Knowledgeable Representation

Facing an OWI marijuana charge can lead to serious consequences. If you plead guilty or accept a plea bargain, that will become part of your criminal record for five to ten years, which can haunt you long into the future. Of course, you’ll also face immediate penalties.

Wherever you are in Indiana, contact us immediately if you are facing a marijuana-based OWI charge. Wruble Law LLC’s criminal defense attorneys have more than four decades of experience in protecting the rights of clients facing charges. Free initial evaluations are available.