Indiana residents beware: Smoke legal pot at your own risk

If you're traveling this summer to a state where marijuana is legal and feel tempted to partake, employment and legal experts say you still may want to think twice before lighting up.

That's because the pot you smoke legally there could wind up causing you big problems back here at home — even days or weeks after the buzz has faded.

The most extreme consequences could be a trip to jail or getting booted from a job:

•Indiana law regarding operating a vehicle while intoxicated covers marijuana. But prosecutors don't have to prove you were high to get a conviction — only that you had a trace of marijuana in your system.

•Indiana is an "at will" employment state, and in most instances, there's nothing to stop an employer from ordering a random drug test and firing you if the result comes back positive for marijuana.

Here's the rub that may make you want to reconsider. According to medical and legal experts, the damning "trace" of the drug — which is all that is needed to land you in jail or out of a job — can be found in your blood and urine anywhere from a few days to several weeks after you last smoked marijuana.

"You can be charged and convicted, even if you were not impaired," explained Indianapolis attorney John Tompkins said of the state's OWI law.

"Say you go out to Colorado for a ski trip and legally smoke some marijuana while you're there. When you come back, you are going to be driving illegally for a couple of weeks," he said.

Tompkins said he has already seen a case like that prosecuted in Indiana. More are certain to follow, now that 23 states have legalized marijuana use in some form. In four of those states — Alaska, Colorado, Oregon and Washington — and the District of Columbia, pot is legal for recreational use.

"What people are doing is leaving Indiana and engaging in behavior lawfully," Tompkins said. "Then they are getting hit on the back end. They're not smoking in Indiana. They're trying to stay within the law."

He calls the issue "legally concerning."

Trace amounts still illegal

Granted, your chances of getting busted are pretty slim — unless you are in an accident and someone is injured or killed, which could prompt police to obtain a warrant for a blood or urine test. But if you are caught, the consequences can be stiff. That includes the possibility of a prison sentence.

And, Tompkins said, a person doesn't have to be involved in a crash to get arrested. He currently has a case in which a person was stopped for speeding and the officer saw empty packaging from legal marijuana.

There were no drugs in the vehicle, but that packaging was enough — like an empty beer can, he explained — for the officer to ask the driver to submit to a drug test. And, if the driver refused, under Indiana law, his or her license would be suspended for one year.

Some states, including Colorado and Washington, have established thresholds for marijuana intoxication — just as all states have cut-off levels for driving with alcohol in your system.

But in Indiana, any amount of marijuana (including metabolites) in the driver's blood or urine is adequate to prove the operating while intoxicated charge. The metabolite is the residue left as the drug breaks down — not the active ingredient that gets you high and makes Twinkies and potato chips seem so delicious.

Those traces can be found for up to a month, said Curtis Graves, staff attorney with Mountain States Employers Council, a Denver, Colo.-based human relations and employment law advisory group.

Few protections elsewhere

Even in Colorado, the poster-child state for the legal recreational marijuana, users have few job-related protections beyond the discretion of employeers, he said.

"There would be nothing prohibiting an employer from terminating an employee who tested positive," Graves said, adding Indiana's "at will" employment law would allow the same. "If the employer decides to test you, and they don't typically need to show impairment, if the metabolites are there, they can terminate without any consequences."

Colorado has a legal off-duty activities law aimed at preventing employers from firing an employer for doing something that is legal on their own time, but he said the state supreme court has determined "marijuana doesn't fall under that, even though it's legal out here, because it is still illegal under federal law, so it falls back on 'at will.' "

Still, outside what Graves called the realm of safety-sensitive jobs, most employers don't use random testing without at least some suspicion of impairment. But you could be tested, he said, following a work-related accident injury.

Whether you get caught — and in trouble — also could depend on the type of test used, Graves said. Traces of marijuana can show up in blood and urine tests for up to a month or longer, he explained, while an oral fluid swab test "cuts it back drastically to a couple of days."

Tim Evans is The Star's consumer advocate. Call him at (317) 444-6204 and follow him on Twitter: @starwatchtim.