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Marijuana DUI

California has long been the most lenient state when it comes to marijuana laws. Medical marijuana in California was legalized in 1996 and in 2016, Prop.64 was passed to legalize recreational marijuana for adults age 21 or older. The law took effect in January 2018. But even with that, there are still some acts that can lead to criminal prosecution. Driving under the influence of marijuana is one common example and remains a crime despite the legalization of marijuana for recreational purposes. While DUI laws have become increasingly strict over the years, motorists and law enforcement officers must keep tabs with new laws and regulations that govern the medical and recreational use of marijuana.

In order to understand DUI charges related to the use of marijuana, it’s important to have a basic understanding of California DUI law, which can be divided into three sections. To begin with, it’s unlawful to drive while impaired by alcohol or drugs. Section two prohibits driving with a blood-alcohol level exceeding 0.08%. But if a driver with BAC below this legal limit is involved in an accident as a result of erratic driving conduct, they can still face DUI charges if the arresting officer believes that the act of driving while impaired directly caused the accident. Section three, on the other hand, highlights that drug impairment is an arrestable offense.

Unlike alcohol, there’s no legal limit for marijuana impairment or as it’s often called, “driving with marijuana high,” “driving under the influence of marijuana,” or “driving while stoned. Nonetheless, all kinds of impaired driving are prohibited by California DUI law. If you’ve been arrested and/or charged with marijuana DUI, contact Jonathan Franklin DUI Attorney now at 323-464-6700 to talk to one our experienced attorney about legal representation.

Legal Definition of DUI of Marijuana in California

The crime of driving under the influence of marijuana is set forth in California Vehicle Code 23152(f), which states that it is illegal for an individual who is under the influence of a narcotic or controlled substance to drive a vehicle.

An individual is considered to have violated VC 23152(f) when:

  • he/she is under the influence of any kind of drug (including marijuana),
  • he/she drives a vehicle, and
  • the drug has impaired his or her physical and mental abilities such that he or she is unable to operate the vehicle using ordinary care as a sober person would under similar conditions.

Understanding the Elements of DUI

The act of driving in most cases is proven through the testimony of the arresting officer who witnessed the driving. However, in cases where there has been an accident or the car is parked and an officer was not present, the driving element may be established through the testimony of witnesses and passengers, circumstantial evidence, and the statements of the defendant. In cases involving DUI of marijuana, circumstantial evidence can entail testimony such as the defendant was seen behind the wheel of the parked car, the engine was warm, the keys were in the defendant’s, or the engine was warm at the time of the accident. However, compared to direct evidence, circumstantial evidence is typically more susceptible to reasonable doubt in court.

The other component in a DUI of marijuana case is that the defendant was under the influence of marijuana while he or she was driving a vehicle. A driver is considered to be under the influence of marijuana when as a result of the use cannabis, his/her physical or mental abilities are impaired to an extent that he or she is not in a position to drive a vehicle and exert the caution that a sober person would under similar circumstances.

Whether the accused was under the influence of marijuana is an issue to be determined by a “trier of fact,” which can be a jury or a judge in a California “bench” trial. The jury or judge has the discretion to determine whether the prosecution has proven beyond reasonable doubt that the defendant drove while intoxicated.

Prosecuting DUI of Marijuana Cases

The prosecution can have serious challenges proving DUI of marijuana because unlike alcohol DUI where there’s a stipulated minimum blood-alcohol content, California law does not provide a legal limit for marijuana. This is what makes California different from other states when it comes to cases involving marijuana DUI. Some states restrict the amount of delta-9-tetrahydrocannabinol (THC) that can be found in a driver’s bloodstream. THC is the key psychoactive component in marijuana which makes the user feel “high” or “stoned.” Some strains of cannabis are low in THC but high in cannabidiol (CBD), a non-psychoactive substance present in marijuana. Medical marijuana in most cases contains high CBD so as to ensure that users get the health benefits of the product without getting high.

Chemical Tests for Marijuana Unreliable

Drivers arrested for DUI is required to submit to a breath or blood testing. Refusal to submit can be punished by a lengthier license suspension or increased jail term. In most cases, drivers suspected of driving under the influence of marijuana are required to submit to a blood test because marijuana cannot be detected on a breathalyzer. There have been periodic attempts to develop and use roadside tests for cannabis. The most current of these tests have involved the arresting officer collecting a swab of the driver’s saliva, and then analyzing the saliva for THC using a device while still at the scene of the investigation. But the attempts to enact legislation to authorize this procedure have been unsuccessful.

California has no legal limit for THC because experts can’t agree on how much marijuana is too much for driving and the chemical tests used to detect and measure THC levels are yet to be reliable enough. There are three basic problems with the use of chemical tests to show that someone was marijuana impaired when driving:

  • Chemical tests don’t indicate what amount of marijuana was used
  • They don’t indicate reliably when the drug was used
  • There is no law indicating what amount of marijuana can instigate impaired driving

Urine, blood, and saliva tests usually detect the presence of inactive components of marijuana. These are metabolites that can stay in the blood for up to a month after marijuana use, especially in chronic users. THC is fat soluble and is stored in the body’s fatty tissues once ingested. This means that it’s hard to establish any connection between the degree of driving impairment (if any) and the THC levels in the blood or saliva sample. What’s more, a positive chemical test doesn’t mean much in the context of a possible violation of Vehicle Code 23152(f).

In DUI of marijuana cases, chemical test results are not necessary to convict a driver. This means that the tests are just but a part of the evidence the prosecuting attorney can provide to prove impaired driving. For this reason, a driver can be charged with and convicted of marijuana DUI even if he/she is not offered or refuses to take a chemical test.

In addition to or instead of chemical test results, other types of evidence can be used to convict someone of DUI of marijuana, including:

  • The defendant’s statements to the law enforcement officer,
  • The defendant’s driving pattern,
  • The presence of marijuana or drug paraphernalia on the defendant’s person or in the vehicle,
  • The defendant’s performance on Field Sobriety Tests (FSTs),
  • Evidence proving that the defendant is addicted to marijuana, and/or
  • Physical symptoms of intoxication such as rapid heart rate and breathing, dilated pupils, red eyes, the odor of marijuana from the defendant’s body, slowed reaction time, and/or dry “cotton” mouth.

Drug Recognition Experts (DRE)

In most cases, testimony from the arresting officer will be used to establish evidence of impairment. But some law enforcement agencies in California will work with a Drug Recognition Expert to examine the defendant. The DRE may even testify at trial about the physical symptoms of impairment that the defendant has at the time of the arrest.

Refusing to Submit to a DUI Chemical Test for Marijuana

California has an “implied consent” law that considers drivers to have consented to a chemical test for alcohol and/or controlled substances if they’re lawfully arrested for driving under the influence. It is, however, imperative to differentiate between a post-arrest DUI chemical test that involves taking the driver’s urine or blood, and a pre-arrest roadside test like a saliva swab. During a traffic stop, for instance, an officer may request the driver to submit to a saliva swab to test for drugs, blow into a breathalyzer for an alcohol screening test, and/or perform field sobriety tests. A driver may lawfully decline to take all these tests provided so long as they’ve not been put under arrest.

But once a person has been legally arrested for DUI, there are penalties for refusing to submit to a chemical test. An individual’s driver’s license is automatically suspended for one year even if the driver is not charged with DUI or is later found not guilty. Other consequences if the driver is convicted of driving under influence can include 2 additional days in jail and 9 months of California DUI School, instead of the usual 3-month program.

Penalties for Marijuana DUI in California

Penalties for driving under the influence of marijuana are similar to those of DUI of alcohol. Marijuana DUI is usually charged as a misdemeanor except when a serious accident is involved. California VC 23152(f) becomes a “wobbler” offense if someone is injured. The offense can, therefore, be charged as either a felony or a misdemeanor.

For a first-time conviction, penalties for DUI of marijuana can include:

  • Between 96 hours and 6 months in county jail
  • A fine ranging from $390 to $1,000,
  • 3 to 5 months informal (summary) probation, and/or
  • Suspension of the driver’s license for 6 months.

The penalties are enhanced with every subsequent conviction.

DUI of marijuana can be charged as a felony but in rare cases. This can only happen if:

  • The driver has 3 or more prior wet reckless or DUI convictions within the 10 preceding years, or
  • The use of marijuana resulted in an accident that caused injury to or death of a third party, or
  • The driver has been convicted of a felony offense within the last 10 years.

Penalties of felony DUI can include:

  • A California state prison sentence,
  • Felony (formal) probation, and/or
  • Suspension of driver’s license for 1 year or longer.

And in the event that a third party dies as a result of a defendant’s impaired driving, he/she could possibly be charged with second-degree murder (known as DUI murder or Watson murder) or gross vehicular manslaughter while intoxicated pursuant to Penal Code 191.5(a).  

Legal Defenses to Marijuana DUI

Many legal defenses employed in cases involving DUI of alcohol can be used to fight charges of marijuana DUI. Some of the common legal defenses include stating that:

  • The arrest or DUI traffic stop was illegal
  • The defendant did not drive
  • The officer did not observe California Title 17 regulations when conducting a chemical test

However, there a few defenses specific to DUI of marijuana charges, including:

  • The driver has not consumed marijuana

Given the unique nature of marijuana metabolites, it’s unlikely that the chemical test will come out positive if the defendant hasn’t consumed marijuana within the last month or so. Usually, a negative chemical test result is a good indication that the driver is not guilty of marijuana DUI. However, inaccuracies can also be found in positive results.  The result can be inaccurate due to the flaws with chemical test equipment or procedures, or traces of certain medications, such as those used for gastrointestinal reflux disease.

It’s therefore important for drivers to inform their DUI attorney about all supplements and drugs they use whether illegal, over-the-counter, or prescription.

  • The driver recently consumed marijuana but is no longer stoned

While chemical tests can show whether an individual consumed marijuana, they cannot show when it was used. Occasional marijuana users may test positive for up to 12 hours after using it. Conversely, frequent users may test positive for marijuana even if it has been days since they last consumed or smoked cannabis. Chronic users, on the other hand, may test positive for up to 4 weeks or more after the last use even if they stopped consuming it totally. A good marijuana DUI defense attorney will make it clear to the prosecutor that chemical tests cannot be relied on.

  • The use of marijuana did not result in impaired driving

A driver cannot be outrightly convicted just because the prosecution can prove the driver recently used marijuana. California does not have a blood THC limit and this means that the prosecutor bears the burden of proof and must show beyond reasonable doubt that the defendant was actually impaired and that his or her ability to drive safely was affected by the drug use.

It’s worth noting that there’s no defense that impairment was based partly on other causes. In addition, the legal use of marijuana is not a defense to DUI of marijuana.

Finding a Marijuana DUI Attorney Near Me

Marijuana DUI cases are often more complicated and very fact-specific than a typical DUI case. And when the choice comes between your freedom and a marijuana DUI charge, you need to be careful with the attorney you retain. A marijuana DUI conviction can burden you with costly criminal fines, take away your driving privileges, land you in jail, and even spell the demise of your career. With so much at stake, you need to have a better fighting chance, which you can get by hiring an attorney who is ready to fight hard on your behalf. You can trust the lawyers at the Jonathan Franklin DUI Attorney to defend you against this unfair charge. We know the law and the criminal justice system and we leave no stone unturned in defending our clients. We can also help you defend a DMV case.

Contact us today at 323-464-6700 for a complimentary, no-obligation consultation concerning marijuana DUI charges in the Los Angeles area and anywhere in Southern California.

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Jonathan Franklin DUI Attorney
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