Driving Under the Influence of Marijuana (or Other Drugs) in New Mexico

Driving under the influence of Marijuana is treated much the same way as driving under the influence of alcohol.  However, there are some important differences in the burdens of proof necessary for a conviction.

Burdens of Proof under the New Mexico Jury Instructions

The standard for conviction for alcohol related DWI is “impaired to the slightest degree.”  As we have written in the past, this really is an amazingly vague standard, which is subject and prone to abuse.  We will not address that here, as the standard is presumably different in DWI Marijuana.

DWI Alcohol – “Less Able to the Slightest Degree”

The jury instruction for alcohol, UJI 14-4501 Driving while under the influence of intoxicating liquor, reads in relevant part as follows:

“The state must prove to your satisfaction beyond a reasonable doubt…as a result of drinking liquor the defendant was less able to the slightest degree… to handle a vehicle with safety…” 

DUI Drugs including Marijuana –“ Incapable of Safely Driving”

The jury instruction for Marijuana (and other drugs, both legal and illegal), UJI 14-4502 Driving while under the influence of drugs, reads a little bit differently:

“The state must prove to your satisfaction beyond a reasonable doubt… the defendant was under the influence of drugs to such a degree that the defendant was incapable of safely driving a vehicle…”

Statutory Differences

The DWI/DUI statute, NMSA 66-8-102 Driving under the influence of intoxicating liquor or drugs, addresses both alcohol and drugs.   The statute states fairly succinctly the law on the matter:

“A. It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.

B. It is unlawful for a person who is under the influence of any drug to a degree that renders the person incapable of safely driving a vehicle to drive a vehicle within this state.”

It is interesting to note that Paragraph A., addressing alcohol, makes no mention of impaired to the slightest degree.  Instead, “under the influence” has been taken to mean “impaired to the slightest degree” by case-law which is reflected in the jury instruction.

Notably, the statute could arguably be construed that way, despite the vagueness of the standard, since is simply addresses driving under the influence, making no distinction in the degree of impairment.   The absence of the distinction in the degree of impairment means any impairment at all, no matter how small.

The statute addressing DUI drugs does make a clear distinction.  The statute says plainly and precisely, consistent with the jury instruction, the degree of impairment necessary for DUI.  The standard is impairment to the degree to render the driver “incapable of safely driving a vehicle.”

Significant Distinction between the Two Burdens of Proof

The distinction might not sound like much, but it is potentially quite significant.  This is particularly true where the driving and the field sobriety tests were not bad.  With the vague “impaired to the slightest degree” standard, it is not unusual for drivers to be charged and convicted at breath alcohol levels below .08 upon fairly suspect reports of bad driving and field sobriety tests.

The standard for drugs as set forth in the jury instruction would set a higher burden of necessitating proof that there actually was bad driving, which would reflect that the driver was “incapable of safely driving.”

Failure of Courts to Follow the Standard Set forth in the Jury Instruction

One might reasonably ask why this discussion is at all relevant or of interest.  The reason is that there are some judges that will erroneously apply the “impaired to the slightest degree” standard despite the clear language in the statutes and the jury instruction.

The Distinction in Burdens Matter

On one hand, there is hardly any standard at all, more or less coming down to what the officer believes impairment to look like.  On the other hand, there must be a showing that the driver was incapable of safely driving, which would require a minimum of proof that he or she was not safely driving.

Worse yet, there is actually an unpublished decision from the New Mexico Court of Appeals, State v. Plyer, where the wrong standard was applied by the trial court and upheld by the Court of Appeals.  This too throws a wrench into the works of otherwise clear distinctions between the two standards.

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