The 35-year-old Waits didn't appear Thursday in Las Vegas Justice Court.
His attorney, Richard Schonfeld, told a judge that he intends to challenge the constitutionality of Waits' felony charge of being under the influence of marijuana.
The former nightclub mogul also faces misdemeanor charges of marijuana possession and driving under the influence following his Aug. 27 arrest.
Hilton pleaded guilty in September to misdemeanor cocaine possession and obstruction charges. She's serving a year of probation.
Police stopped the couple in a black Cadillac Escalade after an officer reported a "vapor trail" of marijuana smoke wafting from the vehicle.
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