Marijuana DUIs still draw stout penalties
TAHLEQUAH – When marijuana was legalized for medicinal use in Oklahoma, many lawmakers and state officials expected, and even warned of, some negative consequences.
Oklahoma’s medical cannabis laws are among the nation’s most permissive. The language of State Question 788, while allowing medicinal marijuana, has the knock-on effect of decriminalizing the drug.
A prescribing doctor need not report the patient condition for which the drug is intended, and it is probable that some medicinal marijuana license holders have claimed a false malady to smoke marijuana recreationally. Anyone without a license who can demonstrate a medical issue can still possess up to 1.5 ounces of marijuana and face only a minimum $400 fine. All marijuana possession infractions are now misdemeanors.
But a person can still end up in jail, particularly if they are driving under the influence of marijuana. In fact, driving under the influence of any legal or illegal drug can result in a DUI arrest.
The Oklahoma Highway Safety Office reports that drug-affected driving has increased, and points to a National Highway Safety Administration survey that suggested nearly 25 percent of weekend drivers tested positive for a minimum of one drug known to affect driving ability.
If caught by the Cherokee Nation Marshal Service, a driver under the influence can expect the typical penalties, but impaired driving is more likely to be investigated by other area law enforcement agencies.
“During our routine operations, the Cherokee Nation Marshal Service does not typically participate in traffic enforcement activities unless another law enforcement agency requests our assistance,” Marshal Shannon Buhl said.
In the tribe’s jurisdiction, the CNMS is cross-deputized with more than 50 federal, state, police and sheriff’s offices and would allow the agency with primary jurisdiction to deal with a DUI driver.
“If one of our tribal officers is ever in a situation where he or she believes marijuana intoxication is a factor, our agency would request the support of a drug recognition expert from one of our cross-deputized agencies,” Buhl said. “Depending on the determination of that agency’s officer, the Marshal Service would then enforce the appropriate laws.”
Regardless of the arresting agency, the DUI penalties will follow Oklahoma law, which is harsh on the use of Schedule I drugs while driving. The federal government still classifies cannabis as Schedule I, so a driver caught DUI-marijuana will enjoy little of the tolerance created by SQ 788.
Oklahoma observes variations of DUI that can have varying penalties, including driving while impaired, DUI under 21, aggravated DUI, actual physical control and child endangerment.
A first DUI offense is a misdemeanor and can carry a jail sentence of 10 days to a year. The maximum fine for a first DUI is $1,000, but once legal fees, time lost on the job, reinstatement of a suspended license and perhaps attorney’s fees are added, the expense of a single DUI conviction can actually be thousands of dollars. Licenses are suspended for at least six months.
Subsequent DUI convictions are felonies. Depending on the number and frequency, they can result in prison sentences up to 10 years, fines of up to $5,000, and license revocations of three years or more.
The CN court system does not try DUI cases, though it could conceivably happen if the CNMS arrested a DUI American Indian somewhere along the few miles of “reservation road” within the CN jurisdiction.
In cases where detention is necessary, the CN does not have its own jail. It contracts with other jails in the jurisdiction, including the Cherokee County Detention Center, where suspects are held and jail sentences meted by the tribal courts are served.
Under the Indian Civil Rights Act of 1968, tribal court sentences – including any for DUI – may not exceed one year in jail and fines may not exceed $1,000.