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Marijuana Law and DUI – What You Need to Know


Marijuana is legal, right? Well yes, kind of. New Mexico passed the HB 2, the Cannabis Regulation Act, in March of 2021, legalizing recreational use of marijuana. Recreational sales can start on April 1, 2022, and that is no April Fool’s joke. But, what does that mean for you?


Adults who are 21 and older are allowed to:

  • possess, purchase, and give other adults up to two ounces of marijuana, up to 16 grams of concentrated marijuana, and 800 milligrams of edible cannabis;
  • cultivate up to six mature and six immature cannabis plants, with a maximum of 12 mature plants per household;
  • create cannabis-infused foods at home or perform extracts that do not involve volatile solvents;
  • possess greater amounts of cannabis, if it is stored in a locked space at the person’s residence that is not visible from public spaces; and
  • possess, manufacture, and give away paraphernalia. New Mexico’s HB 2, The Cannabis Regulation Act (mpp.org). 


I once heard a client say, “I can’t be arrested for driving while under the influence, weed is legal now.” It was that moment that I understood the misconception with the new legislation. Just because recreational marijuana use is legal under New Mexico State Law does not mean that it is decriminalized altogether. With the accessibility to recreational marijuana opening up to the general public, I would anticipate the State will start prosecuting more and more driving while under the influence of drugs. 

In the case of Marijuana Law and DUI, The State must prove the following:

  1. The defendant operated a motor vehicle;
  2. At that time, the defendant was under the influence of drugs to such a degree that the defendant was incapable of safely driving a vehicle;
  3. This happened in New Mexico.

Sounds simple enough? Well, not so much. 


This seems self-evident, but the law is always convoluted. Statute defines motor vehicle as, “every vehicle that is self-propelled and every vehicle that is propelled by electric power obtained from batteries or from overhead trolley wires, but not operated upon rails…” N.M. § 66-1-4.11

Simply- be cautious if you are consuming cannabis and have plans to go anywhere as the operator of a machine that can move you faster than you can walk. Keep your cars, trucks, vans, mopeds, motorcycles, and even lawnmowers at home. Statute does exclude snowmobiles, so you may be in luck during the winter months. 


“Safe driving” is as clearly defined as hieroglyphics.  It is hard to define what a judge or juror would consider as “safe driving” because it is seemingly subjective. For example, if a driver fails to stop at a stop sign when no one is around, is this driving considered “unsafe?”  Isn’t the idea of a stop sign to create balance and rules for vehicles entering intersections and/or new roads? 

Though there is no absolute test to determine “safe” driving, officers are trained in SFSTs, or Standardized Field Sobriety Tests. Essentially, these are tests to help officers determine if your reaction times are slowed or impaired. In general, someone who’s not under the influence of drugs or alcohol is able to multitask and keep their attention to several tasks at once. Drugs and alcohol tend to impair one’s ability to complete multiple tasks at once or to focus on multiple tasks- hence, slowed or impaired reaction times when operating a vehicle. 

You may have seen these tests being conducted on the side of the road. Essentially, officers are looking to see if you are distracted by one task when asked to complete several “simple” tasks. The officer is conducting the tests to find “clues” of signs of impairment.  All you need to know is that these tests are RARELY going to keep you from a ticket, or worse, time in jail. 

It is important to note…

SFSTs are not an officer’s only arsenal to detect drivers whose reaction times may be slowed due to drugs or alcohol. If you are unable to complete the standardized tests, or if officers want more evidence of impairment, they can then utilize alternative tests. These are similar to the Standardized tests in that they are “simple” tasks, that are signs of distractions or inability to follow directions when multitasking. Once again- these tests are likely not going to benefit you, but instead be used as evidence against you. Think of these tests as a “go directly to jail” card in monopoly because the odds are against you. 

Let’s take it one step further. If an officer thinks you are impaired by drugs and not alcohol, they can then call a professional to run you through tests to help detect impairment by drugs. This officer is called a DRE or Drug Recognizance Expert. These experts will conduct tests that are specifically designed to detect drug usage and intoxication. 

There is no clear definition of “safe driving,” but these tests most likely will do nothing but create evidence to be used against you later on in Court.  


Being stopped for a traffic violation can be nerve-racking regardless of the reason. If you are stopped after consuming drugs or alcohol, I tell my clients to remember their HANDS. I use this acronym so they can remember their 5th Amendment rights when looking at their 5 fingers and it stands for the following:

Hand over your identification calmly and respectfully. 

Ask if you are under arrest. 

Never agree to sobriety, breath, blood, or drug tests.

Demand you speak with an attorney. 

State that you are invoking your 5th Amendment right to Silence.

If you are arrested, remain silent until your attorney can assist you. Keep in mind, if no statements are made, then no statements can be used against you.   

If you have questions about Marijuana Law and DUI, please contact us immediately.

To contact LoTempio P.C. Law Group in Buffalo, NY by calling 716-855-3761 or in Taos, New Mexico at 575-221-9999 or by using our contact form.

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LoTempio PC Law Group focuses not only on Marijuana Law and DUI, but on every aspect of the law.  See our practice areas here.

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