Brooklyn Law Review


The rapid legalization of marijuana across the United States has produced a number of novel legal issues. One of the most confounding issues is that presented by the marijuana-impaired driver. In jurisdictions that have legalized the use of marijuana, how high is too high to get behind the wheel? This note assesses the various marijuana DUI laws that states have implemented to combat marijuana-impaired driving. Many of these statutes have followed in the footsteps of the BAC-based standard used to combat drunk driving—using THC measurements to quantify a driver’s level of marijuana-based impairment. Unfortunately, unlike alcohol, the scientific properties of marijuana make it difficult to measure and to correlate with various levels of impairment. This is particularly true in chronic marijuana users, such as medical marijuana patients, who are inevitably exposed to increased liability as a result of such laws. This note proposes various statutory and policy changes, such as affirmative defenses and the use of drug recognition experts, to better adapt marijuana DUI laws to the reality of marijuana impairment on the road.