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?

Click here to read on about Indiana’s new marijuana DUI / OVWI law.