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Struck By A Driver Using Medical Marijuana? What Next?

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If you've recently been injured in a car crash, you may be evaluating your next steps -- including filing a personal injury lawsuit against the driver who hit you. If the other driver was given a blood or urine toxicology screen following the crash, you may be surprised to learn that he or she had metabolites of marijuana in his or her system. How can this factor impact your potential claim? What if the other driver had a valid prescription for medical marijuana? Read on to learn more about what this means for your case.

Will a driver with marijuana in his or her system be arrested for driving under the influence (DUI)?

Although medical marijuana is legal in 23 states, these states can vary widely in their treatment of drivers whose blood or urine tests reveal marijuana metabolites. Some states (like Arizona and Michigan) have zero tolerance marijuana laws, meaning that any measurable trace of marijuana metabolites in a driver's system is enough to charge this driver with DUI. Other states, like Nevada and Montana, have per se laws -- these laws prescribe a maximum limit for the amount of marijuana that may be in a driver's system. If a driver's blood or urine test reveals metabolites in excess of this limit, the driver may be charged with DUI, even if he or she showed no measurable impairment while driving. 

Still other states (like California and Maine) have permissible inference or effect-based laws, which require law enforcement officers to show proof of impairment, generally in addition to a positive drug test. In some situations, the involvement of the other driver in a car crash (even if he or she showed no other signs of impairment) is sufficient to charge the marijuana-using driver with DUI.

How does the presence of THC impact a personal injury lawsuit?

Depending upon the laws of your specific state (or the state in which the accident took place), you may be able to use this piece of evidence to enhance your claim. In general, states with permissible inference or effect-based marijuana laws will make it more difficult to recover punitive damages from the other driver, as you may need to provide evidence in addition to a positive drug test to establish that the other driver was being reckless or negligent.

However, in states with per se or zero tolerance laws, the other driver should have been charged with DUI or a related misdemeanor or felony after the accident. This type of criminal charge against the responsible party can boost your odds of success tremendously -- by establishing that the driver was impaired, you'll be better able to argue recklessness or negligence that can allow a court to assess punitive damages against the responsible party.

What if both you and the other driver were under the influence of medical marijuana?

One situation that quickly becomes complicated is when both you and the responsible driver test positive for medical marijuana. In this case, depending upon your state's laws, you may be assessed partial responsibility for the crash under a principle called contributory negligence. This means that although the other driver may have directly caused the crash, your (assumed or actual) impairment helped prevent you from reacting quickly enough to avoid the crash.

If a court finds that your medical marijuana use was a contributing factor to the accident, any eventual judgment or settlement you receive from the responsible party may be reduced by the extent to which you were deemed negligent. For example, if you're found to have been 20 percent responsible for the crash, you'll only receive 80 percent of the original judgment in your personal injury claim.

For more information, contact an experienced lawyer or visit