How to Beat a DUI marijuana Charge Under Virginia Law


At the time of the writing of this blog, Governor Ralph Northam is just months away for signing into law a bill that will make the possession of marijuana under one ounce a civil penalty. This unprecedented move will significantly reduce the number of criminal convictions and puts Virginians a step closer to being legally able to obtain marijuana for recreational use. At a minimum, marijuana’s decriminalization will lead to greater use and with that more individuals driving under the influence of marijuana.

Under Virginia law, it is illegal to drive under the influence of alcohol and or drugs. But unlike alcohol, which carries a presumption of impairment at .08 BAC (See our video on DUIs), there is nothing telling a judge whether one is impaired when looking at raw data from a blood draw. The Courts look at a variety of factors, but the most relied upon facts are a combination of the blood results and the government’s forensic expert. This expert will connect the dots by testifying that the signs of impairment, which may be explained away by other factors, can only be explained by your use of marijuana.

This article will look at the defenses to driving while under the influence of marijuana and why it is extremely important to retain counsel who is at least as knowledgeable as the government’s expert.

The general rule is that when you drive on the roads of Virginia Beach or other cities in Virginia, you consent to give a breath or blood sample if the officer has reason to believe that you are impaired. Your failure to consent to giving a sample can result in the loss of your driving privileges for one year. So, when an officer stops you and smells an odor of burnt marijuana, be prepared to have them request a blood test.

The three primary defenses to driving under the influence of marijuana are challenging probable cause, challenging the blood test, and challenging the forensic expert.

Keeping Blood Test Results Out Is the Key to this Game

Challenging Probable Cause

In order to admit blood results, the prosecution must prove that there was probable cause to believe that you were impaired while driving.

A thorough cross-examination of the officer will include but not be limited to the following questions:

  1. How long did the officer follow you, and were there specific signs of impairment?
  2. Did you stop the vehicle once the officer activated their lights and sirens, and was that stop performed without issue?
  3. Were you responsive when the officer asked you questions?
  4. Were your eyes bloodshot, red and glassy?
  5. Did you provide your license and registration without fumbling?
  6. Was your attention divided?
  7. Did you have any issues exiting the vehicle?
  8. Did you need to lean on objects for support?
  9. Did you follow instructions of the field sobriety tests?
  10. Did the officer have to repeat themselves?
  11. Did you perform the physically demanding tests well?
  1. Blood taking performed properly
  2. But what if the Court finds that there was probable cause? Now what? Virginia law requires that the blood draw be done properly:
  1. Was implied consent read to you, and did you understand?
  2. Did you give proper consent?
  3. Was the individual who took the blood draw an LPN or CN?
  4. Was alcohol used to clean the injection site?
  5. Were two vials taken?
  6. Were the vials properly labeled?
  7. Were you given the opportunity to observe the process?
  8. Were you given a form allowing you to send the untested vial to a lab?
  9. Who maintained custody and control of the vial on its way to the lab?

The Government Expert – Cross-Examination

But what if the officer crossed his T’s and dotted his I’s? The game is not over. The witness from the division of forensic science is the one witness who remains inside the courtroom while the officer and other witnesses testify. He or she will then tie the results of the blood test to your impairment as if there are no other explanations for your performance. But not so fast—an attorney well versed in their language may be able to help.

Does the expert know the following:

  1. Was the marijuana ingested by smoking, eating, or vaping?
  2. That the rate of absorption differs depending upon how marijuana is consumed?
  3. That it is impossible to know when the marijuana was consumed if they don’t know how it was ingested
  4. That in ingesting marijuana, the absorption is slower as it goes through the liver to get into the bloodstream and that if it is smoked, it goes through the lungs and is absorbed much faster.
  5. And that everyone’s experience with marijuana and its effects differ based upon how frequently they use.

These are just a few questions out of many that need to be asked on cross-examination. It is important to find an attorney that is well versed in this language and knows the lay of the land. If we can help you with this or any other matter, please give us a call.

To schedule a consultation about your legal rights in a criminal defense case—including DUI issues—please call us at (757) 267-4949 or contact us online today.

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