Recreational marijuana use has been legal in Colorado since 2012. However, driving while impaired by marijuana or any other intoxicating substance is still illegal. This article explains when the use of drugs and other substances—legal or otherwise—can result in a drugged driving conviction.
Colorado has two types of drugged driving laws: "driving under the influence" (DUI) and "driving while ability is impaired" (DWAI). The difference between these two offenses (which carry different penalties) is the level of impairment of the driver.
Driving while ability is impaired. A driver is considered impaired if his or her judgment or due care is affected by drugs or other substances to the slightest degree. For drunk drivers, a blood alcohol content of .05% to .08% generally qualifies. And for drivers who have ingested drugs, even a small amount of an impairing substance can result in a DWAI charge.
Driving under the influence. A driver is considered under the influence of drugs (DUI) if he or she is substantially incapable of safely operating a vehicle. This is a higher evidentiary standard than what's required to be convicted of a DWAI. Colorado doesn't have a per se DUI charge for marijuana or other drugs (similar to a .08% BAC for drunk driving). However, a driver with 5 ng/ml of metabolized THC will be presumed to be under the influence.
Intoxicating substances. Of course, drugged driving charges aren't limited to marijuana usage. A DUI or DWAI can arise from any substance, be it marijuana, cocaine, prescription drugs, or over-the-counter medications. The fact that the driver had a valid marijuana card or physician's prescription isn't a legally valid excuse for impaired driving.
The penalties for drugged driving are different for DUI and DWAI convictions. As DUI requires a higher level of impairment, the penalties are generally greater.
DWAI. A first-offense DWAI is a misdemeanor and carries two to 180 days in jail, $200 to $500 in fines, and 24 to 48 hours of community service. However, the jail time can be stayed if the offender obtains a substance abuse evaluation and follows the recommended treatment. The court can order the use of an ignition interlock device (IID) during the driver's probation period. A DWAI doesn't necessitate the suspension of the driver's license but results in eight demerit points, which could lead to license suspension depending on the driver's record.
DUI. A first-offense DUI conviction is also a misdemeanor but carries five days to one year in jail, $600 to $1,000 in fines, 48 to 96 hours of community service, and up to two years of probation. As with a DWAI, completing a drug evaluation and completing the recommended treatment may allow the offender to avoid jail time. The driver's license will be revoked for nine months and the conviction will result in 12 demerit points. A restricted license is available after one month with the installation of an IID. An IID might also be required for probation.
Diversion options are available for first-offense charges but not for repeat offenders. Repeated drugged driving violations will also result in increasingly severe penalties. These penalties for repeat drugged driving violations are the same as repeat drunk driving violations.