The Alaska Court of Appeals released an opinion Friday reversing a DUI conviction for a man accused of driving under the influence of marijuana, saying the jury should have been instructed on lesser offenses like reckless driving and negligent driving.

Alaska legalized marijuana for recreational use in 2014. There is not currently a legal limit for marijuana impairment while driving in Alaska, but law enforcement can base DUI arrests on their observations of impairment.

In Colorado and Washington, two states with legal recreational marijuana and limits for driving, 5 nanograms per million of THC is enough to be arrested for driving under the influence.

Police in Palmer stopped Vadim Alan Izer for driving 56 mph in a 45 mph zone. Five hours after driving, Izer’s blood test showed he had 6.9 nanograms per million of THC.

Izer didn’t deny that he was speeding. He also didn’t deny he’d consumed a small amount of marijuana a few hours before driving but said he was not impaired by it.

He asked that the jury be instructed about the lesser offenses, but the court refused. A jury convicted Izer of DUI in May 2016.

The court said the state should have also included the crimes of reckless driving and negligent driving in its case, particularly in cases where defendants deny being intoxicated.

In its opinion, the appeals court referenced a 1988 case where it ruled instructions for lesser offenses were required when the defendant is proven to have driven erratically but where no evidence of impairment is presented. Since Alaska doesn’t have a legal limit for marijuana impairment while driving, no such evidence was presented in Izer’s case.

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