Marijuana OWI vs Alcohol OWI in Wisconsin
Pulled Over for Driving Under the Influence of Weed? We Can Help
The I in OWI (Operating while Intoxicated) refers to more than just alcohol. Driving under the influence of marijuana or other drugs (even legal prescription drugs) can get you in trouble. The good news is Grieve Law has experience with all kinds of OWI charges. If you’ve been caught driving while drunk or driving while stoned, our OWI defense attorneys will meet with you for a free consultation to discuss your case.
How Weed OWIs and Alcohol OWIs are Similar
Possession of THC is illegal in the state of Wisconsin, which is why marijuana/weed OWIs are prosecuted so differently than alcohol OWIs. We have written at length about alcohol OWIs—challenging sobriety tests, officer creditability, even the reliability of lab reports showing a blood alcohol concentration (BAC) of over .08 g/100mL.
Marijuana OWIs usually mirror their alcohol counterparts closely in the pre-arrest phase. Typically there is a traffic stop, during which the officer has to find articulable facts leading him to believe the driver might be intoxicated.
When identifying alcohol intoxication, officers look for:
- Red, glassy, bloodshot eyes
- An odor of intoxicants emitting from the driver or the vehicle
- Slurred speech
When identifying marijuana intoxication, officers usually spot:
- Dilated pupils
- Lack of coordination
- Green tongue
Sometimes officers perform the same three standard field sobriety tests in marijuana cases as in alcohol cases:
- Horizontal gaze nystagmus test
- Walk and turn test
- One leg stand test
Some officers will administer specific drug recognition tests, like the finger to nose test.
Even when suspecting a marijuana-related OWI, officers often still ask the driver to perform a preliminary breath test. If the test returns a result below .08g/100mL but the driver is still presenting significant clues of intoxication, this supports the officer’s belief the driver has ingested marijuana. This is when an arrest is made.
Differences between High OWIs and Drunk OWIs
From this moment, the analysis for marijuana OWIs diverges dramatically from alcohol OWIs. This is a result of how Wisconsin legislators chose to write the OWI statutes. Alcohol OWIs are charged under Wisconsin Statute 346.63(1)(a) and 346(1)(b). The first states a person may not operate a motor vehicle while under the influence of an intoxicant, controlled substance, controlled substance analog, or any combination thereof, “which renders him or her incapable of safely driving.”
The second states a person may not operate a motor vehicle with a prohibited alcohol concentration.
The analysis of these two statutes boils down to this: to be found guilty of the first, a jury must find you were too drunk to drive, regardless of blood alcohol concentration; to be found guilty of the second, a jury must find that your blood alcohol concentration was over .08g/100mL.
Marijuana OWIs, on the other hand, are charged under Wisconsin Statute 346.63(1)(am), which states no person may drive with “a detectable amount of a restricted controlled substance in his or her blood.” Under this section, there is no analysis of the level of intoxication. It’s a simple, black-and-white rule: is there a detectable amount of THC metabolites in your blood? If there is, a jury will very likely find you guilty.
The three primary metabolites of THC are:
Delta-9-THC and 11-Hydroxy-THC are active metabolites of THC, indicating recent use. Carboxy-THC is an inactive metabolite, indicating more dated use. Prosecutors are unsurprisingly mostly concerned about the two active metabolites and will charge a case under Operating with Restricted Controlled Substance if any amount of these metabolites is detected in a lab test.
Legal Limit for THC while Driving in Colorado
If you’re interested in this issue, you likely already know states like Colorado, which have legalized marijuana use, have instituted THC legal limits. In Colorado, if your lab test returns a result of less than 5ng/mL of Delta-9-THC, you can legally drive or operate a motor vehicle. This is not the case in Wisconsin. Grieve Law frequently sees clients whose lab results come back with around 1ng/mL of Delta-9 or 11-Hydroxy THC. This result indicates our clients were not impaired while driving, but because of the language of Wisconsin Statute 346.63(1)(am), prosecutors charge these cases anyway.
You Can Still Beat a Marijuana OWI
All this is not to say these cases are ironclad. We can still challenge the traffic stop, the administration of field sobriety tests, officer credibility, and the arrest. The goal with marijuana OWIs is to use pretrial motions to exclude any unfavorable lab results. A skilled and experienced attorney will have the background necessary to make these challenges. And with any luck, successful lobbying may convince Wisconsin legislators to change the law in order to make marijuana OWIs more difficult to prosecute, especially when it can be shown that the driver’s THC levels are below an amount experts have deemed to be indicative of intoxication.
Grieve Law’s OWI defense lawyers have years of experience getting criminal charges reduced and dropped. Whether you’re charged with driving under the influence of alcohol, marijuana, or other substances, schedule a free consultation with our skilled attorneys to find out your options.