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Fairfax Criminal Defense Blog


Posted by John A. Kassabian | Oct 12, 2022

Although recreational marijuana use has been legalized in Virginia, you can be charged with DUI for driving under the influence of marijuana. It is a somewhat confusing situation because you can still test positive for marijuana use after the effects of its use have worn off.

If you have been charged with driving while under the influence of marijuana, you should retain a DUI lawyer to help you resolve it. Call John Kassabian of Kassabian & Kassabian, P.L.C., in Fairfax, VA, to consult with him about your options.


In Virginia, there is no legal limit for driving high on marijuana. Because the law legalizing recreational use of marijuana is still relatively new, certain clarifications around DUIs for marijuana are still being made.

While the law for driving under the influence of alcohol specifically states a threshold of 0.08% blood alcohol level, it also allows for drivers to be charged if they are visibly impaired by substances, whether those intoxicants are alcohol or other drugs. Limits have been set for some drugs; for example, 0.1 milligrams of methamphetamine per liter of blood will result in a DUI for drug use. However, there is no limit set for number of nanograms of THC (the psychoactive compound in marijuana) per liter of blood in Virginia.

So, let's say you smoked marijuana on a weekend afternoon. After the effects wore off, you drove to meet people at your local bar. You drank responsibly but got pulled over on your way home. You passed the breathalyzer test, but the officer noticed marijuana paraphernalia visible in your center console. At that point, the officer could charge you with DUI and obtain your blood for a drug test. It is likely that you would still test positive for marijuana despite no longer being under its influence.


Simply put, yes. You can get charged with DUI if you are pulled over for driving erratically, and the officer suspects that you have been smoking marijuana. Because there is no limit for the amount of marijuana present in your system, you may be charged with a DUI despite having very little in your system or despite not having smoked or consumed marijuana within hours or even days of being arrested. Marijuana can be detected in your blood up to 12 hours after use and up to 30 days in your urine.


Defenses of DUI while under the influence of marijuana are numerous and can be based on timing of consumption of marijuana as it relates to operating a motor vehicle, but also on the blood withdrawal process and the accuracy of measurement of the presence of marijuana in the driver's system. The process and analysis used to detect marijuana in the blood require precision in their use, upkeep, and calibration.

There are also many steps that need to be adhered to when taking and identifying one's blood to include but not limited to ensuring the correct blood withdrawal kit was used, the vials used were provided to or approved by the Department of Forensic Science (DFS), the blood vials were sealed properly by the person taking the sample or at his/her direction, the correct number of vials where used, the person who sealed the vials correctly completed the prenumbered certificate of blood withdrawal forms and attached one form to each vial, the vials were placed in a container provided by DFS, the container was sealed to prevent any tampering with the vials, the police officer took possession of the container as soon as the vials were placed within the container and sealed, the blood vials was promptly transported or mailed to DFS, the proper authorized person actually withdrew the blood, the part of the body where the blood was withdrawn was properly prepared and cleansed, the proper equipment was used to analyze the blood sample, implied consent rights were read, chain of custody of the driver of the car was maintained prior to the blood being withdrawn, chain of custody of the blood after the blood withdrawal, search warrant requirements, delivery of the blood to the DFS for testing, preservation of the blood sample for independent blood analysis,  proper and timely filing of an independent analysis request, certificate of analysis result filing, right of confrontation, toxicologist expert witness, and more.

Those are but a few of the potential issues and defenses a good DUI lawyer would consider concerning blood withdrawals when defending someone accused of having operated a vehicle while under the influence of marijuana. John Kassabian will consult with you to determine the best course for your particular case. Get in touch with him now for a free consultation.

About the Author

John A. Kassabian

John A. Kassabian joined the family firm in 2002 after having served as a Prosecutor in Fairfax County and Prince William County. Specializing in criminal defense, traffic defense and civil related matters, John has an extensive criminal law background and has handled a wide variety of cases for ...

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