Using Marijuana While on DUI Diversion - Oregon Trial Attorneys

Using Marijuana While on DUI Diversion

With marijuana having long been legal in Oregon for medical users– and having further become legal for recreational users– many people want to know if they can still use marijuana while in Oregon’s DUI Diversion Program. The question is rather simple, but the answer is complicated.

Can I use recreational marijuana while in the DUI Diversion Program?

The short answer is, “No.” You’re not allowed to use intoxicants while in the DUI diversion program– and marijuana is considered an intoxicant just like alcohol.

What if my DUI was based on alcohol only?

It doesn’t matter. You can have a marijuana DUI and be prohibited from drinking alcohol while on diversion. You can also have an alcohol DUI and be prohibited from smoking, vaping, or eating marijuana while on diversion.

What if I have a medical marijuana card?

Some courts will allow you to use medicinal marijuana while in the DUI diversion program, but you need to find a treatment program that will honor your medical marijuana card. Since Oregon law requires a minimum period of 90-days of sobriety, the treatment provider will need to be able to certify that you were intoxicant-free during that time period

The Oregon Administrative Rules (OARs) concerning Outpatient Addictions and Mental Health Services under Division 19 set out the rules which prescribe the minimum service delivery standards for services and supports provided by providers certified by the Health Systems Division of the Oregon Health Authority. Stated another way, theses are the minimum rules for DUI treatment. Under the “Definition” sections of OAR 309-019-0105(105)(c), one of the requirements of “Successful DUII Completion” is a demonstration of a minimum of “90 days of continuous abstinence prior to completion” of treatment.

OAR 309-019-0195 continues (with emphasis added in bold):

DUII Rehabilitation Programs

(1) In addition to the general standards for substance use disorders treatment programs, those programs approved to provide DUII rehabilitation services must meet the following standards:

(a) DUII rehabilitation programs must assess individuals referred for treatment by the screening specialist. Placement, continued stay and transfer of individuals must be based on the criteria described in the ASAM PPC, subject to the following additional terms and conditions:

(A) Abstinence: Individuals must demonstrate continuous abstinence for a minimum of 90 days prior to completion as documented by urinalysis tests and other evidence;

(B) Treatment Completion: Only DUII rehabilitation programs may certify treatment completion;

(C) Residential Treatment: Using the criteria from the ASAM PPC, the DUII program’s assessment may indicate that the individual requires treatment in a residential program. When the individual is in residential treatment, it is the responsibility of the DUII program to:

(i) Monitor the case carefully while the individual is in residential treatment;

(ii) Provide or monitor outpatient and follow-up services when the individual is transferred from the residential program; and

(iii) Verify completion of residential treatment and follow-up outpatient treatment.

(2) Urinalysis Testing: A minimum of one urinalysis sample per month must be collected during the period of service, the total number deemed necessary to be determined by an individual’s DUII rehabilitation program:

(a) Using the process defined in these rules, the samples must be tested for at least five controlled drugs, including alcohol;

(b) At least one of the samples is to be collected and tested in the first two weeks of the program and at least one is to be collected and tested in the last two weeks of the program;

(c) If the first sample is positive, two or more samples must be collected and tested, including one sample within the last two weeks before completion; and

(d) Programs may use methods of testing for the presence of alcohol and other drugs in the individual’s body other than urinalysis tests if they have obtained the prior review and approval of such methods by the Division.

(3) Reporting: The program must report:

(a) To the Division on forms prescribed by the Division;

(b) To the screening specialist within 30 days from the date of the referral by the screening specialist. Subsequent reports must be provided within 30 days of completion or within 10 days of the time that the individual enters noncompliant status; and

(c) To the appropriate screening specialist, case manager, court, or other agency as required when requested concerning individual cooperation, attendance, treatment progress, utilized modalities, and fee payment.

(4) Certifying Completion: The program must send a numbered Certificate of Completion to the Department of Motor Vehicles to verify the completion of convicted individuals. Payment for treatment may be considered in determining completion. A certificate of completion must not be issued until the individual has:

(a) Met the completion criteria approved by the Division;

(b) Met the terms of the fee agreement between the provider and the individual; and

(c) Demonstrated 90 days of continuous abstinence prior to completion.

(5) Records: The DUII rehabilitation program must maintain in the permanent Service Record, urinalysis results and all information necessary to determine whether the program is being, or has been, successfully completed.

(6) Separation of Screening and Rehabilitation Functions: Without the approval of the Chief Officer, no agency or person may provide DUII rehabilitation to an individual who has also been referred by a Judge to the same agency or person for a DUII screening. Failure to comply with this rule will be considered a violation of ORS chapter 813. If the Chief Officer finds such a violation, the Chief Officer may deny, suspend, revoke, or refuse to renew a letter of approval.

What does this mean? It means there’s going to be a period of at least 90 days when marijuana use will be prohibited, and a diversion participant could be tested for it. The question remains: If a participant in Oregon’s DUI Diversion Program completes treatment, could they then use marijuana. Possibly, but it might still be a violation of diversion– although it might not be detected and reported to the Court. Ideally, it would be best to seek Court approval first so as to avoid the possibility of diversion being revoked.

What Happens if I use Marijuana While On Diversion?

If you use marijuana while on diversion and without the approval of the Court or treatment provider, your DUI diversion could be revoked, and you’d face a conviction for DUI. Before using marijuana– recreationally or medicinally– while in diversion, speak with an attorney.

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