Indiana just put a new DUI / OVWI law into effect on July 1, 2021, and it deals exclusively with marijuana. When it comes to controlled substances, the State of Indiana has traditionally made no distinction between active and inactive metabolites for DUI / OVWI purposes. That means the driver who smoked weed five days ago is potentially just as guilty of DUI / OVWI as the driver who smoked weed five minutes ago.

This has never been a fair standard, and the new law makes it seem as if Indiana is taking steps to address it. First of all, the statute states that “A person who operates a vehicle with a controlled substance listed in schedule I or II of I.C. 35-48-2 or its metabolite in the person’s blood commits a Class C misdemeanor.”

Despite the fact that one of the criteria for a schedule I classification is that the substance “has no accepted medical use in treatment in the United States,” marijuana is still considered a schedule I controlled substance.

Does the new law create an affirmative defense?

This new law applies to the driver who’s been charged with Class C misdemeanor DUI / OVWI for having marijuana metabolites in their blood. The statute says it’s a defense to the Class C misdemeanor charge if the defendant can show the following things:

  • The controlled substance in question was marijuana or its metabolite;
  • The driver was not intoxicated;
  • The driver did not cause a traffic accident; and
  • The substance was identified by means of a chemical test taken pursuant to I.C. 9-30-7.

So let’s say you were visiting a neighboring state with less restrictive cannabis laws and you sampled some gummies. The following week, you’re pulled over in Indiana on suspicion of DUI / OVWI, and for whatever reason, the officer wants to get a blood sample. Assuming that the test reveals metabolites in your blood, does the new law provide a defense?

Let’s look at the things the statute requires you to show, one at a time.

The law applies to someone charged with DUI / OVWI based on the presence of a marijuana metabolite in their blood.

The first point is easily the most straightforward—either you were charged with DUI / OVWI based on the presence of a marijuana metabolite, or you weren’t. If the blood test showed cocaine in your body, or if your ACE was 0.12, the marijuana exception is not going to help you.

The law applies to someone who was not intoxicated at the time of operation.

There’s some gray area here, but most scientists agree that the presence of inactive metabolites in your body does not indicate present intoxication. Inactive metabolites tend to show that you were intoxicated at some point in the past. If you were actively intoxicated at the time you were driving, the marijuana exception is not going to help you.

The law applies to someone who did not cause a traffic accident.

Sober people cause accidents every day, but Indiana is only interested in punishing them if there’s proof of past marijuana use. How is this fair? It’s not. If you cause a traffic accident with inactive metabolites in your system, the marijuana exception is not going to help you.

The law applies where the controlled substance in question was identified by means of a chemical test pursuant to Indiana Code section 9-30-7.

This is where things get weird. Title 9, article 30, chapter 7 of the Indiana Code is specifically concerned with chemical tests in fatal accidents or accidents involving serious bodily injury. Remember that this statutory exception we’re discussing applies to people charged with DUI / OVWI as a Class C misdemeanor.

If the exception is meant to apply to Class C misdemeanors, why require that the chemical test be administered under the statute that addresses serious bodily injury? People accused of causing serious bodily injury (or worse) are not often charged with Class C misdemeanors.

Make the right call.

It’s hard to know what the legislature was thinking here. Was this an oversight? Or was this a deliberate attempt to sabotage a well-intended amendment? We may never know.

We do know, however, that intoxicated driving is still illegal in Indiana. That much is well-settled—don’t drive drunk and don’t drive high. If you have any questions, call the Marc Lopez Law Firm at 317-632-3642 and remember—always plead the 5th!

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