While more and more states are legalizing marijuana, under Wisconsin law it is still illegal. As a matter of fact, drug laws in Wisconsin strictly prohibit the use of, and the possession of, marijuana.
Therefore, if you should decide to operate a motor vehicle while under the influence of a controlled substance such as marijuana you run the risk of being charged with a violation of Operating Under a Restricted Controlled Substance.
How Does An Officer Determine If Someone Is Driving Under The Influence of Marijuana?
Before an officer can arrest you and charge you with Operating Under the Influence of an Intoxicant (OWI) or Operating Under a Restricted Controlled Substance he or she must have probable cause to believe that you are under the influence of an intoxicant (be it alcohol, prescription drugs or a controlled substance).
Wisconsin Courts look at the quantum of evidence within an arresting officer’s knowledge at the time of arrest that would lead a reasonable officer to believe that the defendant probably committed a crime. The Courts apply a “totality of the circumstances” test when determining whether an officer had probable cause to arrest.
In determining whether probable cause for arrest exists, Courts will review whether an officer observed signs that a person is operating with a restricted controlled substance in his or her blood.
The following indicators are just a few examples of evidence of operating with a restricted controlled substance: erratic driving, odor of burnt marijuana coming from the vehicle or from the driver, indications of impairment from field sobriety tests, red eyes, lethargic speech, admissions of having recently smoked marijuana, marijuana or drug paraphernalia in the vehicle, marijuana or drug paraphernalia on the driver’s person, eyelid tremors, body tremors, marijuana debris on the driver’s clothing.
Two Things That Can Get You Convicted of Drugged Driving
Erratic or Unsafe Driving
In a “drugged driving” case two citations will often be issued. The first citation issued is an OWI (operating under the influence of an intoxicant) citation. This alleges that you were impaired by some sort of intoxicant (alcohol or other drugs) and it materially impaired your ability to drive. If you are under the influence of marijuana and are unable safely operate a vehicle, that is illegal. If there is evidence that you were under the influence of marijuana which impaired your ability to safely operate a motor vehicle you could be convicted of an OWI.
Delta-9 THC Detected in Your Blood Test
The second citation in a “drugged driving” case is Operating with a Restricted Controlled Substance. Whether or not you are issued a citation for Operating with a Restricted Controlled Substance in conjunction with an OWI depends on the jurisdiction. Some jurisdictions wait for the blood test result confirming the presence of Delta-9 THC before issuing the Operating with a Restricted Controlled Substance citation. Other jurisdictions may issue this citation immediately and forego issuing the OWI citation.
The Wisconsin State Laboratory of Hygiene tests most blood samples in Operating with a Restricted Controlled Substance cases. This laboratory has established that a detectable amount for Delta-9 THC is 1.0 ng/ml.
Delta-9 THC can remain in a person’s system for days after smoking. All it takes is a detectable amount of Delta-9 THC of marijuana showing up in your bloodstream for you to be convicted with operating with a restricted controlled substance in the state of Wisconsin. This is known as a zero-tolerance policy.
If you are issued a citation for Operating with a Restricted Controlled Substance you can be charged and convicted even if there are no other signs of physical impairment. It does not even matter if you smoked the marijuana several days ago- impairment is not an issue.
Please note that under Wisconsin law you are not required to submit to a field sobriety test unless you have a commercial driver’s license or CDL.
Otherwise you have the right to politely refuse.
Penalties For OWI Marijuana in Wisconsin
Penalties for driving under the influence of marijuana in Wisconsin will depend on a variety of different factors including but not limited to whether or not this is your first offense, where you were driving when you got pulled over, and if you had a minor with you.
Your first offense will get you a fine of between $150 and $300.
You second offense will result in a fine between $350 and $1,100, a minimum of five days in jail, or both; and your license suspended for at least one year.
Your third offense will result in a fine between $600 and $2,000, a minimum of 30 days in jail, or both; and your license suspended for at least two years.
As of April 2016 any 4th OWI offense will be considered a Class H felony. This means you will be fined between $600 and $10,000, spend at least 6 months in prison, or both.
With penalties like this it would be in your best interest to contact an experienced attorney to help you fight your case.
Jessie Weber has over a decade of experience in both the private and public sectors. She has the skills and expertise to provide you with the best defense strategy for your case.
To request a consultation contact Jessie Weber law offices at 715-598-7737.