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Wisconsin and Weed: Not a Good Combination

By Andrew Mishlove on March 17, 2017


Twenty-eight states now allow medical use marijuana with a doctor’s prescription.  Eight states allow the recreational use of marijuana without a prescription.  Wisconsin is not one of those states.

Simple possession of marijuana is a crime in Wisconsin, and a second offense is a felony.  Felony delivery of marijuana can be simple as sharing a pipe with a friend.  Wisconsin is not a marijuana-friendly state, and that’s not likely to change anytime soon.

Some doctors are surreptitiously providing marijuana to needy patients. I have a personal friend suffering from lung cancer.  His doctor at the cancer treatment center is illegally giving him marijuana, so that he can cope with the effects of chemotherapy.  As a result, he has kept his appetite, and retained his body weight.

If my friend is caught driving on marijuana, however, he will be in trouble.

In Wisconsin, it is illegal to drive with “any detectable amount” of Delta-9 THC in your blood.  In other words, Wisconsin has zero tolerance for marijuana and driving.  We’ll talk about what this means.   There is an exception for legal medical marijuana used in another state.

Marijuana is, as we all know, a plant.  It contains all sorts of varieties of a group of substances that are chemically known as cannabinoids.  There are lots of different types of cannabinoids.  For our purposes, we will focus on three of them.

The first type of cannabinoid we will look at is Delta-9 THC.  This is the stuff that gets you high.

If you use marijuana, the immediate cannabinoid of interest that goes into your bloodstream is Delta-9 tetrahydrocannabinol, or Delta-9 THC.  In Wisconsin, it is illegal to drive with “any detectable amount” of Delta-9 THC in your blood.  This is true whether or not you are high or impaired.  The only exception is if you used the marijuana pursuant to a lawful medical prescription from another state, and it is illegal to use it in Wisconsin even if you have a prescription from another state.

For most people, the Delta-9 THC will only stay in your system for 4 to six hours.  There are exceptions.  Regular marijuana users may build up a base level of Delta-9 THC that reside in their fat, and remains detectable for long periods of time.  Weekend users, however, should clear the Delta-9 THC within hours.

In large amounts, Delta9-THC may impair your driving.  In states where marijuana is legal, the legal limit for driving with Delta-9 in your system is 5ng/ml of whole blood.   Wisconsin, however will prosecute trace amounts of Delta-9 THC. We have seen cases prosecuted as low as 1 ng/ml.   These are very low levels.  In fact, this level are so low that it is debatable whether or not it is even detectable with the equipment that Wisconsin normally uses.

The second cannabinoid we see is called Hydroxy-THC.  Your body metabolizes Delta-9 THC into Hydroxy THC.  So, it is not in the marijuana, but it is a byproduct that your body creates.  While Hydroxy THC may still have some weak psychoactive properties, it is not the stuff that gets you high.  It is not illegal to drive with Hydroxy THC in your blood in Wisconsin.  Hydroxy THC may linger in your system for days, so a test will show that you have used marijuana, but not necessarily recently.

The final cannabinoid of interest is called 11-Carboxy THC.  Your body metabolizes the Hydroxy THC into 11-Carboxy THC.  So, it is another byproduct your body makes, but it is not psychoactive. It does not make you high.  It is also not illegal to drive with 11-Carboxy THC is your system.  This is the cannabinoid that can linger in your body for a long time, as it is stored in your fat.

Some scientists claim that by measuring the ratio of Delta-9 to Hydoxy and 11-Carboxy THC, they can estimate when and how much marijuana was used.   This claim, however, is very doubtful.  Even those scientists who support the idea admit that it requires analysis by an extremely sensitive and expensive process called Tandem High Pressure Liquid Chromatography – Mass Spectrometry.  This process is rarely, if ever, used in DUI-marijuana cases.  More often we see the far simpler, but still sophisticated Gas Chromatography-Mass Spectrometry.

The bottom line is that you can get in a lot of trouble for smoking marijuana and driving in Wisconsin.  If you are a regular marijuana user, it may be illegal for you to drive at all, since your body contains trace levels of Delta-9 THC.  Even if you have a prescription for marijuana from another state, it is illegal to use it in Wisconsin (although it may be a defense to a DUI-Marijuana charge).  If you have used marijuana, you should wait twelve hours before driving, to be safe.

Mishlove and Stuckert, LLC is one of America’s leading law firms in defending charges of driving while under the influence of marijuana.  We have a proven record of success in these cases, and exceptional knowledge of the science.  In fact, Attorney Andrew Mishlove developed and directs the nation’s leading legal education course, training lawyers on how to defend these cases (Serious Science, Blood Drug Analysis and Trial Advocacy, www.NCDD.com).  Attorney Lauren Stuckert has an unmatched record of trial victories in these cases.

If you have questions about a DUI/OWI marijuana case, contact Mishlove and Stuckert, LLC, Wisconsin’s preeminent DUI defense law firm.

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