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Is it Legal to Smoke Marijuana and Drive in Colorado?

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Marijuana use is legal in Colorado, with some limitations. For instance, it’s against the law to consume marijuana on any Colorado public roadway. Smoking pot while driving is a serious offense, just like drinking alcohol while driving. Either action can get you in legal trouble.  

Driving while impaired is unsafe and illegal, whether due to marijuana, alcohol, prescription medication, or over-the-counter drugs. Getting high while driving is just as unlawful as being high while driving.  

Driving Under the Influence of Marijuana 

There’s an established impairment level for marijuana, according to the State of Colorado. Drivers with five nanograms of delta-9 tetrahydrocannabinol (THC) per milliliter of whole blood can be charged with driving under the influence of drugs (DUID). If this is proven in court, you’d be guilty of DUI “per se.” 

It’s illegal to drive if you’re “under the influence” of drugs. This means your driving ability is “substantially impaired,” even if  your blood THC is lower than the “per se” level. The arrest would be based on “observed impairment, either while driving or after being pulled over.” For example, the officer may have witnessed you drifting from lane to lane or driving too fast or too slow. 

An Open Container of Marijuana 

Marijuana is, like alcohol, included in Colorado’s open container laws, so it’s illegal to have marijuana in your vehicle’s passenger space if: 

  • It’s in an open container 
  • It’s in a container with a broken seal 
  • If there’s evidence marijuana was consumed inside your vehicle (like a joint sticking out of your mouth or in your vehicle, or the officer can smell or see pot smoke) 

Violating the open container law is a traffic infraction, not a criminal law violation like DUID. It carries a fifty-dollar fine plus a surcharge.  

If you challenge the citation, the prosecutor need only prove you committed the infraction by a preponderance of the evidence (it’s more likely than not). This is a much lower standard than criminal law, which requires the prosecution to prove the case beyond a reasonable doubt. 

Smoking Marijuana While Driving Isn’t Just Illegal. It’s a Dangerous Thing to Do. 

Let’s say you’re pulled over, and the officer determines you were smoking marijuana while driving. If there’s enough evidence of impairment, in addition to this infraction, you can be charged with DUID. You can be arrested for a “per se” violation of the law if your THC level is high enough. 

If you just violated the state’s open container law, the officer may (or may not), given all the circumstances, have probable cause to believe your vehicle contains evidence of criminal activity (like other drugs or illegal weapons). Probable cause is a fact-specific determination. The police must have reasonable, objective grounds to believe there’s incriminating evidence inside your car. It can come from information the police receive before you’re stopped or observations made while you’re detained. 

If you have an outstanding warrant for your arrest or there’s something in the vehicle you don’t want the police to know about (like a weapon, stolen property, illegal drugs, or burglary tools), the last thing you want to do is smoke pot while driving. 

It may open the door to your arrest or your vehicle being searched. If you’re arrested due to something in the vehicle, we may or may not be able to challenge whether there was probable cause for a search. It’s not worth the risk. 

The point of the police pulling drivers over isn’t always to ensure we all have working brake lights or that a driver’s vision isn’t blocked by air fresheners hanging from rearview mirrors. They may want to see if they can search cars for more serious infractions or criminal law violations. 

If you are arrested for smoking marijuana while driving or arrested on a more serious charge in Colorado, contact attorney Kevin Churchill for a free consultation. He has represented those charged with DUI and DWAI in the Front Range for more than 24 years.