There are two ways to get a DUI in Utah: (1) if the person is under the influence of any drug to a degree that renders the person incapable of safely operating a vehicle; or (2) if a person operates a motor vehicle while that person has any measurable controlled substance or metabolite of a of a controlled substance in the person's body (per se law). Utah Code Ann. § 41-6a-502(b) (West 2010); Id. § 517(2).
(1) Driving under the influence of Marijuana Id. § 41-6a-502(b).
It is unlawful for a person to operate or be in actual physical control of a vehicle if the person is under the influence of any drug to a degree that renders them incapable of safely operating a vehicle. Moreover, marijuana is defined as a drug under Id. § 41-6a-501(1)(ii)(c).
The fact that a person charged is or has been legally entitled to use alcohol or a drug is not a defense against this first type of DUI. Id. § 41-6a-504.
(2) Driving with any measurable amount of marijuana or marijuana metabolite present (per se law) Id. § 41-6a-517(2).
It is unlawful for a person to operate a vehicle if the person has any trace amounts of THC or THC-COOH in their system.
NOTE: Actual intoxication is not an element of this offense. Marijuana metabolites can be detected in a person's body up to one month after use, depending on a myriad of factors (See our science page). Thus, it is possible for a person to be convicted of this second type of DUI weeks after he or she last ingested marijuana.
Utah has laid out three different affirmative defenses for this second type of DUI. Id. § 41-6a-517(3)(a)-(c). The three affirmative defenses are:
- If the substance or metabolite is involuntary ingested by the accused;
- If the substance or metabolite is prescribed by a practitioner for use by the accused (NOTE: that a doctors recommendation to use cannabis is not the same as a doctor's prescription); or
- The substance or metabolite is otherwise legally ingested via "cannabis in a medicinal dosage form or a cannabis product in a medicinal dosage ... in accordance with Title 26, Chapter 61a, Utah Medical Cannabis Act."
- Any person who drives a motor vehicle on the roads of Utah is considered to have given his or her consent to a chemical test or tests of his or her breath, blood, urine, oral fluids for the purpose of determining if the person is under the influence of drugs/alcohol, or if they have a measurable amount of a controlled substance or metabolite in their body. Id. § 41-6a-520.
- Refusal to submit to any and all tests can result in revocation of the driver's license, or the requirement of a ignition interlock device. If the driver is dead or unconscious they are considered incapable of refusing, and the police may administer the chemical tests. Id. § 41-6a-522.
- The person to be tested does not have a right to consult with an attorney while determining whether to submit to a test.
- First offense class B misdemeanor - at least 48 consecutive hours in jail, 48 hours of community service, or electronically monitored home confinement, - Participation in an educational course; Fine: at least $700; The court may also impose probation or substance abuse treatment. Id. § 41-6a-505 (1)(a)(i); Id. § 41-6a-503(1)(a); Id. § 41-6a-505 (1)(a)(iv); Id. § 41-6a-505 (1)(a)(v); Id. § 41-6a-505 (1)(b).
- If 21 or older - suspension of the operator's driver's license for at least 120 days. The driver is entitled to a hearing, but only has 10 days after the incident to request this hearing in writing.
- If under 21 - suspension of driver's license until person becomes 21 years of age, or 120 day, whichever is longer. Id. § 41-6a-509(1)(a)(i)(A); Id. § 41-6a-517(6); Id. § 41-6a-521; Id. § 41-6a-509(1)(a)(ii)(A).
- Second offense (within 10 years) class B misdemeanor - not less than 240 consecutive hours in jail; or 240 hours of community service; or electronically monitored home confinement.; participate in an educational course; fine of not less than $800; the court may also impose probation or substance abuse treatment. Id. § 41-6a-505(2)(a)(i); Id. § 41-6a-505(2)(a)(iv); Id. § 41-6a-505 (2)(b).
- If 21 or older - suspension of the operator's driver's license for a period of 2 years. Utah Code Ann. 41-61-509(1)(a)(i)(B).
- If under 21 suspension of driver's license until person becomes 21 years of age, or 2 years, whichever is longer. Utah Code Ann. 41-61-509 (1)(a)(ii)(C).
- Third or subsequent offense (within 10 years) third degree felony – up to 5 years in prison; fine of $1,500-$2,500. Id. § 76-3-203(3).
Other Penalties & Penalty Enhancers
- If offender inflicts bodily injury upon another as a proximate result of operating the vehicle in a neglect manner while driving under the influence. Id. § 41-6a-503 (1)(b)(i).
- If offender is with a passenger under 16 in the vehicle at the time of the offence. Id. § 41-6a-503 (1)(b)(ii).
- If offender was 21 or older and had a passenger under 18 in the vehicle at the time of the offence. Id. § 41-6a-503 (1)(b)(iii).
In Utah, sobriety checkpoints are authorized by statute. Id. §77-23-101 et seq.
- In Utah sobriety checkpoints require authorization from magistrate. State v. Sims, 808 P.2d 141 (1991).
- Utah courts have found avoidance of a checkpoint does not justify a stop. State v. Talbot, 792 P.2d. 489 (1990).
State v. Wallice55 P.3d 1147 (2002) -- Finding that an individual may operates a motor vehicle in a safe manner however, if the driver has any measurable amount of controlled substance, that person may still be charged and convicted of DUI.
Per Se Drugged Driving Laws
Utah has a zero tolerance per se drugged driving law enacted for cannabis, cannabis metabolites, and other controlled substances. (Utah Code Annotated, Section 41-6-44 & Section 41-6-44.6)
Utah's law calls for mandatory imprisonment of 48 hours and not more than 6 months upon conviction for a first offense.