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DUI with Marijuana in KY

Posted on June 8, 2016 in DUI General Criminal Law Issues - Northern KY

Kentucky does not have a per se limit for marijuana.  Since marijuana is illegal in Kentucky, some prosecutors (and a few judges) believe that you are impaired with ANY marijuana in your system.  Other prosecutors (and most judges/juries) believe that the amount is irrelevant without an expert to help translate an amount to impairment.  In either case, the prosecution in Kentucky must prove that the driver is “impaired in their ability to operate the motor vehicle” as a result of the drugs and/or alcohol combination.

Some states such as Ohio have a per se limit with marijuana in your blood system which is similar to that of alcohol.  For example, if you have over 2 nanograms/milliliter of marijuana in your blood stream, then you can be convicted of operating while impaired (OVI=DUI in Ohio).

The Ohio threshold for drugged driving is illustrated in the following table. Ohio’s DUI Per Se Levels pursuant to ORC§ 4511.19(A)(1)(vii) and § 4511.19(A)(1)(viii)(I)-(II).

Prohibited Substance Urine Blood
Marijuana 10 ng/ml 2 ng/ml
Marijuana metabolite 35 ng/ml 50 ng/ml
Marijuana metabolite in combination with alcohol or other drugs 15 ng/ml 5 ng/ml

Affirmative Defense

It is a valid defense if a person obtained the controlled substance pursuant to a prescription issued by a licensed health professional authorized to prescribe drugs, and the person injected, ingested, or inhaled the controlled substance in accordance with the health professional’s directions. Id. § 4511.19(K)(1)-(2).

NOTE: A doctor’s recommendation to use cannabis is NOT a prescription.

My experience shows that any smoking within the last 24 hours will likely put the person over the Ohio limit, regardless of actual impairment.  As such, best legal advise would be to refuse a request for blood or urine test if you have ingested marijuana within 24 hours.  In Kentucky, the decision is more difficult.  If you know you have marijuana in your system, a breath test will not show the substance.  A blood test, however, will show marijuana in your system.

The problem is what works best.  If you have also been drinking and smoking, best legal advice is generally to refuse a blood test.  If you HAVE NOT ADMITTED TO RECENT SMOKING, generally it is advisable to submit to the test.  In either case, if you test positive or if you refuse, you should expect that the prosecutor will not amend the charges.  You should plan to take your case to trial, whether before a judge or jury.  

As such, you should hire an experienced DUI/criminal defense attorney who has trial experience with both judges and juries.  There are certain judges you should avoid and others who may be preferable to a jury.  For representation in Kenton, Campbell, Boone or Hamilton counties, call Michael Bouldin at 859-581-6453 or email at mwbouldin2@gmail.com.