Drug DUI and marijuana OUI defense

R.I. Gen. Laws § 31-27-2 makes it a crime to drive under the influence of drugs, toluene, or any controlled substance listed in chapter 21-28, or any combination of these, including with alcohol. Proof can include testimony from a certified drug recognition evaluator, or evidence that the substance left you incapable of safely operating a vehicle. Being legally entitled to use the drug is not a defense.

In 2021, the General Assembly repealed the separate offense of driving with a blood presence of any scheduled controlled substance. For cannabis, the Rhode Island Cannabis Act adds that a person is not considered under the influence solely for having cannabis metabolites in their system.

This is where drug cases get complicated. The penalty section mentions drugs in two different first-offense tiers. The lowest tier covers a "blood presence of any scheduled controlled substance" ($100 to $300 fine, 30 to 180 day suspension). The highest covers being "under the influence of a drug" ($500 fine, 3 to 18 month suspension, and a required interlock or blood and urine testing). Second and third offenses repeat the same split.

The statute does not say which tier controls when both could describe the facts. The answer can depend on how the charge is brought and what the evidence shows, so talk to us about your specific case. Our Rhode Island DUI page lays out every tier.

M.G.L. c. 90 § 24 covers operating under the influence of marijuana, or of narcotic drugs, depressants, or stimulant substances as defined in M.G.L. c. 94C § 1. The 0.08 per-se limit applies only to alcohol. There is no per-se level for THC or any other drug.

The statute does not reach every drug. The Appeals Court has held that the Commonwealth must prove the substance is one defined in c. 94C § 1, and it reversed a conviction where that proof was missing. The same fines, jail ranges, § 24D option, and license revocation periods apply as in an alcohol OUI, and a judge may also order drug education or treatment.

Adults 21 and older can legally use cannabis in both states, within set limits. Rhode Island's Cannabis Act expressly does not permit driving under the influence of cannabis, and in Massachusetts, operating under the influence of marijuana remains a crime under § 24.

In Commonwealth v. Gerhardt, 477 Mass. 775 (2017), the Supreme Judicial Court held that field sobriety tests are not scientific tests of marijuana impairment. Officers may describe your performance on "roadside assessments" but may not say you passed or failed, and a lay witness may not give an opinion that you were high. Roadside assessment evidence alone is not enough to prove impairment.

A valid prescription does not make impaired driving legal. Rhode Island's statute says so directly. In Massachusetts, a prescribed medication can support an OUI charge if it fits the c. 94C § 1 definitions and it impaired your driving. Whether a particular medication qualifies is a real legal question, and courts have reversed convictions when the Commonwealth did not prove it.

Without a number like 0.08, prosecutors build drug cases from the driving, the officer's observations, roadside assessments, your statements, and lab results. Police may call in an officer trained in drug recognition evaluation.

In Rhode Island, drivers are deemed to consent to breath, blood, saliva, or urine testing, with no more than two tests: one for alcohol and one for drugs. Blood can be drawn only by a physician, registered nurse, or certified medical technician, and a copy of blood or urine results must be mailed to you within 30 days for them to be admissible. Under Birchfield v. North Dakota, 579 U.S. 438 (2016), the Fourth Amendment does not allow a warrantless blood test as a search incident to an impaired-driving arrest.

We look at why you were stopped, what the officer actually saw, how any roadside assessments or drug evaluation were done, and what the lab tested for and when the sample was taken. In Massachusetts, we also examine whether the substance is one the statute covers. Your prescriptions and medical history can matter, so bring what you have to our first conversation.