Yes, the recreational use of marijuana is now legal in Colorado. But DUI of marijuana is still a crime. You can be charged with DUI if the marijuana has made you substantially incapable (mentally or physically) of safely operating a vehicle.
A person convicted of a DUI of marijuana faces the same basic penalties as a DUI of alcohol. This cart illustrates the penalties:
| Misdemeanor offense | Jail sentence | Can a judge suspend jail? | Probation | Fine | Public service | License revocation |
| 1st DUI of marijuana | 5 days – 1 year | Yes, with alcohol/drug evaluation and alcohol education | Up to 2 years | $600 – $1,000 | 48 – 96 hours | 9 months |
| 1st DWAI of marijuana | 2 days – 180 days | Yes, with alcohol/drug evaluation and alcohol education | Up to 2 years | $200 – $500 | 24 – 48 hours | none |
| 2nd DUI/DWAI of marijuana in 5 years | 10 days – 1 year | No, though court can grant home detention | 2 – 4 years | $600 – $1,500 | 48 – 120 hours | 1 year |
| 2nd DUI/DWAI of marijuana after 5 years | 10 consecutive days – 1 year | No, though court can grant home detention | 2 – 4 years | $600 – $1,500 | 48 – 120 hours | 1 year |
| 3rd DUI/DWAI of marijuana | 60 consecutive days – 1 year | No, though court can grant work release or community corrections | 2 – 4 years | $600 – $1,500 | 48 – 120 hours | 2 years |
Meanwhile, a fourth-time DUI/DWAI of marijuana is a class 4 felony, carrying two to six years in Colorado State Prison and/or $2,000 to $500,000 in fines.
There is no separate code section for Colorado DUI marijuana or Colorado DWAI marijuana. Regular DUI and DWAI laws apply. The only significant difference between drunk driving and driving high on marijuana is:
- If you are arrested for DUI or DWAI based on marijuana use, the officer can require you to take a DUI blood test (or a saliva or urine test) instead of a DUI breath test.
To help you better understand Colorado laws on driving stoned, our Colorado DUI defense lawyers discuss the following:
- 1. What is DUI of marijuana?
- 2. What is DWAI by marijuana?
- 3. How much marijuana is too much?
- 4. Do I have to take a DUI blood test?
- 5. What are the penalties?
- 6. What are the defenses to DUI / DWAI marijuana?
1. What is DUI of marijuana?
You drive under the influence (DUI) of marijuana in Colorado when, as a result of consuming marijuana, you are substantially incapable, mentally and/or physically, to safely operate a vehicle. Under 42-4-1301, C.R.S., a DUI of marijuana is usually a misdemeanor.
Unlike alcohol, there is no DUI “per se” of marijuana. DUI of drugs must be proved by objective evidence that you were unable to drive safely.
However, it is a permissible inference that you drove under the influence of marijuana if your blood contained 5 nanograms or more of delta 9-tetrahydrocannabinol (THC) per milliliter.1 THC is the active ingredient in most strains of marijuana.2
But even this amount of THC in the blood is not conclusive. The best Colorado DUI lawyers can challenge it in court. To prove you guilty of DUI of marijuana, the prosecutor will need to show that you were actually too stoned to drive safely. Such evidence might include:
- You violated Colorado traffic laws,
- You were weaving in and out of your lane,
- You drove too fast or too slow,
- You appeared stoned (bloodshot eyes, slurred speech),
- The officer smelled marijuana in the car,
- There was marijuana paraphernalia in the vehicle (e.g., rolling papers, a bong, a joint clip, etc.), or
- Marijuana was found in your car.
However, the mere fact that you had a medical marijuana registry card does not by itself, give the officer the right to insist you take a blood test.3 And it cannot be used as part of the prosecutor’s case-in-chief against you4.
Colorado courts can infer you committed DUI if you had a blood-marijuana-concentration of at least 5 nanograms per millimeter.
2. What is DWAI by marijuana?
You drive while ability impaired (DWAI) by marijuana when weed affects you in “the slightest degree.” This means that you are less able mentally and/or physically to operate a vehicle than you ordinarily would have been safely. Under 42-4-1301, C.R.S., DWAI of marijuana is usually a misdemeanor.
It doesn’t take much impairment in order to be guilty of DWAI. Unlike alcohol, however, no test can establish a presumption that you were not stoned.5
If you are lawfully arrested on suspicion of DWAI of marijuana, the amount of THC in your blood will be just one factor for the jury to consider.
3. How much marijuana is too much?
Colorado has no set limit for how much marijuana can be in your system when you drive. The effect of marijuana can vary depending on many factors, including:
- The strain of marijuana,
- The strength of the weed,
- The mode of administration (for example, smoked, eaten, vaped, or tincture),
- Other substances in your system,
- Whether you have eaten, and
- Your prior experience with marijuana.
However, a jury is entitled to infer you were DUI of marijuana if a DUI chemical test showed 5 nanograms or more of THC per milliliter of your whole blood.
4. Do I have to take a DUI blood test?
By driving in Colorado, you give your “express consent” to take a chemical test if you are lawfully arrested for DUI or DWAI.6 This does not refer to the roadside preliminary breath test an officer may ask you to take after a traffic stop.7
Unless and until you have actually been arrested, you are not obligated to take a chemical test. If you are actually arrested, however, refusing a Colorado DUI chemical test has serious consequences.
If alcohol use is suspected, you will be offered your choice of a DUI breath test or a DUI blood test. If, however, the officer reasonably believes you were using drugs, you may be required to take a blood test instead of — or in addition to — a breath test.
5. What are the penalties?
Consequences of Colorado DUI marijuana are the same as for DUI of alcohol. The consequences of Colorado DWAI marijuana are the same as for DWAI of alcohol. They can include:
- Jail time (especially if you have a prior drunk/drugged driving conviction),
- A fine,
- Loss of your Colorado driving privilege (especially for DUI),
- Ignition interlock restriction once you get your driver license back, and
- Increased insurance costs.
6. Defenses to DUI / DWAI marijuana
The best defenses to Colorado DUI marijuana charges depend on the facts of your case. However, defenses our skilled Colorado DUI attorneys commonly raise include (without limitation):
- The officer had no probable cause to pull you over,
- There was no reasonable basis for suspecting you of drug use or giving you a blood test,
- The officer did not properly advise you of your rights,
- Improper procedures were used in your DUI blood test,
- Your driving was not affected by marijuana,
- You drove poorly for another reason totally unrelated to marijuana use (such as you were tired, sick or distracted).
DUI of marijuana carries the same penalties as DUI of alcohol in Colorado.
Legal references:
- 42-4-1301(6)(a)(IV), C.R.S. Halter v. Department of Revenue, Motor Vehicle Div., (Court of Appeals of Colorado, Division Four, 1993) 857 P.2d 535; People v. Raider (2022) 516 P.3d 911.
- So-called high cannabidiol (CBD) strains of marijuana contain relatively little THC. It is often consumed by users of medical marijuana who do not want to get high. It is still unlawful, however, to drive after consuming high CBD weed if it affects your driving.
- 42-4-1301(6)(k), C.R.S.
- 42-4-1301(6)(j), C.R.S.
- See 42-4-1301(6)(a)(I). If at the time you alleged alcohol, your blood alcohol content was .05% or less, it shall be presumed that you were not under the influence of alcohol and that your ability to operate a motor vehicle was not impaired by alcohol.
- 42-4-1301.1, C.R.S.
- Colorado state troopers have begun experimenting with a roadside saliva test for marijuana. However, as yet this test has not been officially adopted as a “DUI of Marijuana” in Colorado – Law, Penalty & Best Defensespreliminary field sobriety test.