Driving Under the Influence of Marijuana in California
Vehicle Code 23152(e) VC

 

Driving under the influence of marijuana is a crime in California under Vehicle Code 23152(e) VC.1You are guilty of DUI marijuana if you drive a motor vehicle while your mental abilities are impaired by marijuana, to the extent that you are unable to drive with the caution of a sober person using ordinary care.2

Vehicle Code 23152(e) VC reads: "(e) It is unlawful for a person who is under the influence of any drug [including marijuana] to drive a vehicle."

The legal definition of DUI of marijuana under VC 23152(e) is similar to driving under the influence of alcohol under Vehicle Code 23152(a) VC.

Penalties for DUI marijuana

The consequences of a conviction for DUI of marijuana are the same as the California DUI penalties involving alcohol. Penalties for a first-time DUI of marijuana may include:

As with other forms of DUI, the penalties for VC 23152(e) DUI of marijuana increase with each conviction for any form of DUI--including DUI of alcohol and DUI of drugs--within a 10-year period. This chart summarizes the penalties for DUI of marijuana for defendants with different records:

Type of DUI Marijuana

Jail/Prison Sentence

Fine

Driver's License Suspension or Revocation

DUI School

1st offense DUI of marijuana

Up to 6 months in county jail

$390-1000

6 to 10 months (convertible to restricted license)

3 or 9 months

2nd offense DUI of marijuana

96 hours to 1 year in county jail

$390-1000

2 years (convertible to restricted license after 12 months)

18 or 30 months

3rd offense DUI of marijuana

120 days to 1 year in county jail

$390-1000

3 years (convertible to restricted license after 18 months)

30 months

DUI of marijuana with injury (misdemeanor)

5 days to 1 year in county jail

$390-5000, plus restitution to injured parties

1 to 3 years

3, 18 or 30 months

DUI of marijuana with injury (felony)

16 months to 16 years in state prison

$1015-5000, plus restitution to injured parties

5 years

18 or 30 months

Felony DUI of marijuana

16 months, 2 years or 3 years in state prison

$390-1000

4 years

18 or 30 months

Type of DUI Marijuana

Penalties

1st offense DUI of marijuana

Up to 6 months in county jail; $390-1000 in fines; driver's license suspension for 6 to 10 months; 3 or 9 months of DUI school

2nd offense DUI of marijuana

96 hours to 1 year in county jail; $390-1000 in fines; driver's license suspension for 2 years; 18 or 30 months of DUI school

3rd offense DUI of marijuana

120 days to 1 year in county jail; $390-1000 in fines; driver's license suspension for 3 years; 30 months of DUI school

DUI of marijuana with injury (misdemeanor)

5 days to 1 year in county jail; $390-5000 in fines plus restitution to injured parties; driver's license suspension for 1 to 3 years; 3, 18 or 30 months of DUI school

DUI of marijuana with injury (felony)

16 months to 16 years in state prison; $1015-5000 in fines plus restitution to injured parties; driver's license suspension for 5 years; 18 or 30 months of DUI school

Felony DUI of marijuana

16 months, 2 years or 3 years in state prison; $390-1000 in fines; driver's license suspension for 4 years; 18 or 30 months of DUI school

 Legal defenses to DUI marijuana

Legal defenses for fighting charges of California Vehicle Code 23152(e) VC driving under the influence of marijuana include:

  • You weren't driving;
  • You didn't use marijuana;
  • You used marijuana, but you were no longer high when you drove;
  • Your mental and physical abilities weren't significantly impaired;

Our criminal defense attorneys include former prosecutors and cops.  We understand how to defend against California DUI charges successfully.

In order to help you better understand the crime of VC 23152(e) DUI marijuana in California, our criminal defense attorneys discuss the following, below:

Police-car-pulling-over-car-at-night
Vehicle Code 23152(e) VC makes it a crime to drive under the influence of any drug, including marijuana.

If after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.

1. What is the Legal Definition of VC 23152(e) DUI Marijuana?

California Vehicle Code 23152 VC makes it a crime to drive under the influence (DUI) of:

  • alcohol,
  • drugs (including marijuana), or
  • alcohol and drugs combined.4

The legal definition of DUI of marijuana under Cal Vehicle 23152(e) consists of the following "elements of the crime":

  1. Driving a vehicle;
  2. Under the influence of marijuana;
  3. When the driver's mental or physical abilities are so impaired by marijuana that s/he is unable to operate the vehicle with the caution of a sober person, using ordinary care, under similar circumstances.5

Let's take a closer look at each of these elements.

1.1. “Driving” a vehicle

This is generally the easiest element of DUI marijuana for the prosecution to prove.  For purposes of California Vehicle Code 23152(e) , the word “drive” carries its usual, everyday meaning.

If the officer didn't see you driving, he/she can't legally arrest you for a DUI of marijuana. 6

Example: An LAPD officer sees Alfred smoke a joint outside of a bar.  Afterwards, Alfred gets into the driver's side of his car and turns on the ignition.  The cop immediately arrests him for VC 233152(e) DUI marijuana.  However, since Alfred never actually drove the vehicle, his arrest for DUI is illegal.

1.2. “Under the influence” of marijuana

You are considered to be “under the influence” of marijuana when:

  1. as a result of consuming marijuana
  2. your mental or physical abilities are so impaired
  3. that you can no longer drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances 7

These “elements of the crime” of VC 23152(e) are issues of fact.  As such, you have the right to have a jury trial to determine whether the prosecutor has proved them beyond a reasonable doubt. 8

Jury-members-in-jury-box
The elements of the crime of Vehicle Code 23152(e) DUI marijuana are issues of fact, to be decided by a jury.

2. How Does the Prosecutor Prove that I Am Guilty of Vehicle Code 23152(e) DUI Marijuana?

Proving California Vehicle Code 23152(e) DUI of marijuana in California presents serious challenges for a prosecutor.

Chemical Tests

Unlike alcohol, there is no “per se” amount of marijuana in the bloodstream that can be used to establish impairment under VC 23152(e). 9 Positive test results for blood alcohol content (BAC) are considered reliable; tests for marijuana are not.

Tests for marijuana reveal whether or not there is some marijuana in your system. At present, however, they cannot establish:

  • how much marijuana you consumed, or even
  • how recently you consumed it 10

More importantly, there is no expert consensus as to how much marijuana is sufficient to impair one's ability to drive (and thus make one guilty of driving under the influence of marijuana). 11 (See Section 5, below).

Chemical test results are not necessary, however, to convict you of DUI marijuana. 12 They are just one piece of evidence the prosecutor can use to show you drove impaired. 13 So if you refuse to take a chemical test -- or even if the cops don't ask you to take one -- you can still be charged under Vehicle Code 23152(e) VC.

In addition to chemical test results, evidence of DUI marijuana may include:

  • Your driving pattern,
  • Your statements to the police,
  • Your physical appearance,
  • Your performance on Field Sobriety Tests (FSTs),
  • The presence of marijuana or paraphernalia in your car or on your person,

    and/or

  • Evidence that you are addicted to marijuana. 14
shoes-walking-straight-line-representing-DUI-field-sobriety-test
The Field Sobriety Test used in DUI alcohol arrests is one way cops try to determine if you are DUI marijuana.

Most of these elements will be introduced through testimony from the arresting officer.  If drug use is suspected, the officer may also call a “Drug Recognition Expert” (DRE) to the scene. 15

Signs of marijuana use that the officer and/or DRE might look for in deciding whether to arrest someone for Vehicle Code 23152(e) DUI of marijuana include:

  • Dilated pupils,
  • Rapid heart rate,
  • Rapid breathing,
  • The odor of marijuana coming from your body,
  • Red eyes,
  • Dry “cotton” mouth,

    and/or

  • Slowed reaction time 16

3. Do I Have to Agree to a Chemical Test for California DUI Marijuana?

When you drive in California, you give your implied consent to be tested for alcohol and drugs if you are lawfully arrested for DUI, including DUI of marijuana. 17

Your criminal defense attorney in your VC 23152(e) case can fight both the arrest and the test results later.  If your arrest turns out to be unlawful, the test results will be thrown out -- even if they show that you used marijuana.

But even if it was a lawful arrest, there's no need to panic.  As discussed below, a positive chemical test does not, by itself, prove you were under the influence of marijuana and are guilty of Vehicle Code 23152(e).

3.1. Which chemical test do I have to take?

If the officer suspects you of DUI of marijuana or other drugs, you might initially be offered the choice of either a breath or a blood test. 18

However, even if you choose a breath test, you may be required to submit to a blood test as well. This usually happens after a breath test comes up negative, or low, for alcohol. An officer may legally require a blood test if he/she reasonably believes you are driving under the influence of marijuana or other drugs and a blood test will reveal evidence of it. 19

If blood testing is not available, or you cannot take a blood test because of a medical condition -- such as hemophilia -- a urine test may be taken instead. 20

3.2. What if I refuse to take a chemical test for driving under the influence of marijuana?

When you are first pulled over for DUI of marijuana, the officer may ask you to blow into a hand-held Breathalyzer and/or perform field sobriety tests.  As long as you have not yet been arrested, you may legally decline to take these tests.

Once the officer places you under arrest, however, refusal to take a DUI chemical test will result in penalties in addition to any penalties for VC 23152(e) DUI of marijuana.

For a first time DUI, these additional penalties include:

4. How Reliable Are Chemical Tests for DUI Marijuana?

There are three basic problems with chemical tests for driving under the infleunce of marijuana:

  • They don't indicate reliably when marijuana was used;
  • They don't indicate reliably how much marijuana was used; and
  • There is no consensus on how much marijuana leads to impaired driving

The primary psychoactive ingredient in marijuana is delta-9-tetrahydrocannabinol (“THC”).22 It can produce alterations in motor behavior, perception, cognition, and memory. THC is what makes marijuana users feel “stoned” or “high.”23

Smoking marijuana produces a very rapid high, with the highest blood concentration of THC occurring very soon upon the marijuana being consumed. 24 Typical marijuana smokers experience a high that lasts approximately two hours. After three to five hours, most behavioral and physiological effects return to their normal levels.25

Oral consumption of marijuana produces more delayed, but lower, peak THC levels.26

All this means that chemical tests for marijuana can be very problematic for proving that someone has violated Vehicle Code 23152(e) VC.

4.1. Blood tests

Hand-holding-blood-sample
Blood tests can produce false positives for VC 23152(e) DUI marijuana.

THC is fat-soluble.  This means that some of it gets stored in the body's fatty tissues.  As a result, it can be detected by chemical tests used for DUI marijuana well after someone who has used it is no longer high. 27

In people who use marijuana only occasionally, THC is detectible in the blood for up to 12 hours after consumption.  In chronic marijuana users, it can show up in the blood for as long as two days.  As a result, “false positives” for marijuana impairment in DUI marijuana blood tests are common, even when people are no longer high. 28

Example: Alice smokes marijuana three or four times a week. One day she runs a stop sign and is pulled over. The officer smells pot on Alice's clothes and arrests her for VC 23152(e) DUI marijuana.

Ironically, this happens on a day when Alice has not smoked any pot and isn't high. But because she is a habitual user, however, her blood test turns up positive for THC.

4.2. Urine tests

Gloved-hand-holding-urine-sample-jar
Urine tests for DUI marijuana are even more problematic than blood tests.

Urine tests for driving under the influence of marijuana are even less reliable than blood tests.  They do not check directly for the presence of THC, but instead for inactive metabolites, such as THC carboxylic acid (THC-COOH). 29

These inactive metabolites can be detected in urine long after marijuana has ceased to have any impairing effects.  By some estimates, they can be detected for up to four weeks in chronic users. 30

Moreover, since these substances do not themselves cause impairment, a positive urine test does not indicate that one was driving “under the influence” of marijuana. 31 It merely indicates that cannabis has been consumed at some point in the fairly recent past.

Newer strains of high CBD/low THC marijuana may be particularly susceptible to false positives in VC 23152(e) cases. 32 CBD – cannibidiol – is a non-psychoactive substance in marijuana. 33 High CBD cannabis is often used as medicinal marijuana by people who don't want to feel high. 34

Example: Adam suffers from a blood-clotting disorder and frequent migraines.  He smokes high-CBD marijuana every evening after work to help him manage his headache pain. 35 He doesn't smoke on weekends.

One Monday morning, on the way to work, Adam accidentally runs a red light. When a cop pulls him over, he smells marijuana on Adam's clothes.  A breathalyzer test proves negative for alcohol, and the cop orders Adam to take a chemical blood test to see if he has violated California's driving under the influence of marijuana law.

Because Adam has a clotting disorder, he is permitted to take a urine test instead of a blood test.  Even though Adam hasn't smoked in two-and-a-half days, and he smokes a strain low in THC, he tests positive for marijuana and is charged with Vehicle Code 23152(e) VC.

4.3. Oral swabs / saliva tests

Person-receiving-oral-swab-DUI-marijuana-test
Some California counties have begun using oral swabs for marijuana in VC 23152(e) cases.

Studies have shown that saliva sampling is non-invasive, and that it can narrow down time of use to a matter of hours. 36 However, the admissibility of oral swabs for marijuana in VC 23152(e) cases has not yet been ruled on by a California court.

Some California counties – including Los Angeles, Bakersfield, Sacramento and Fullerton – have begun using these oral swabs on a test basis. 37 At present, however, an oral swab is a voluntary pre-arrest test, like a Breathalyzer or a field sobriety test. 38

This may soon change, however. The Los Angeles City Attorney's Office has said is hoping to test the legality of saliva tests as proof of DUI marijuana in California Vehicle Code 23152(e) VC cases. 39

5. Does Marijuana Use Really Impair Driving Ability?

Image10

Studies on marijuana use and driving impairment are inconclusive and contradictory. While most suggest that marijuana use increases the risk of a car crash, others suggest that it does not. 40

However, the National Highway Traffic Safety Administration advises against drawing conclusions about impairment based on THC blood concentration--which would make proving that someone is DUI marijuana exceedingly difficult. 41

Even the studies that show a link between marijuana use and accidents estimate that driving high merely doubles your risk of getting into an accident.  By way of contrast, driving drunk can increase the risk of an accident up to 20 times for younger drivers. 42

In addition, stoned drivers are more aware than drunk ones of being intoxicated. As a result, they tend to underestimate their ability to drive, and to drive more slowly than normal.  Drunk drivers, on the other hand, typically overestimate their abilities and drive faster. 43

In short, even though the law prescribes the same penalties for Vehicle Code 23152(e) VC DUI of marijuana as for driving under the influence of alcohol, there is evidence that this equivalence is not fair--and is too hard on stoned drivers in relation to drunk drivers.

6. What are the Penalties for VC 23152(e) DUI of Marijuana?

California-drivers-license-marked-suspended
A 6-month suspension of your driver's license is a standard penalty for a first conviction of VC 23152(e) DUI of marijuana.

Absent a serious accident, DUI of marijuana  under California Vehicle Code 23152(e) VC is usually charged as a California misdemeanor.  The penalties are the same as for DUI of alcohol. 45

For a first offense, the consequences of a DUI marijuana conviction can include:

  • Informal probation for three (3) to five (5) years,
  • A minimum of ninety-six (96) hours, and a maximum of six (6) months, in county jail,
  • A minimum fine of three hundred ninety dollars ($390), up to a maximum fine of one thousand dollars ($1000), and
  • Suspension of your driver's license for six (6) months. 46

These penalties increase slightly--but remain misdemeanor penalties--for a second or third conviction of DUI (including DUI marijuana). But if you

  • cause a death or injury to a third party, or
  • have 3 prior DUI or wet reckless convictions within the last 10 years,

you may be charged with VC 23152(e) DUI marijuana as a felony.47 In that case you face California felony DUI penalties including:

  • A California state prison sentence, and/or
  • A suspension of your driver's license for one (1) year 48
Man-with-head-in-hands-beside-wrecked-car
If you injure someone while DUI marijuana, you could be charged with VC 23152(e) as a felony.

7. How Can I Fight Charges of Vehicle Code 23152(e) DUI of Marijuana?

Defenses to a California DUI for alcohol can be used to fight charges of DUI marijuana as well.  These include unlawful arrest, and failure to conduct a chemical test in accordance with California Title 17 regulations. 49

But a few defenses are special to charges of VC 23152 (e) DUI marijuana (or driving under the combined influence of marijuana and alcohol). These include:

7.1. You didn't use marijuana

Because marijuana's metabolite is fairly unique, it is unlikely that if you didn't use it you will test positive on a chemical test. 50

However, it is not impossible, especially if you use proton pump inhibitors (such as Protonix) for gastrointestinal reflux disease. 51

This is why it is important to tell your criminal defense attorney in your Vehicle Code 23152(e) VC DUI of marijuana case if you use any supplements or drugs -- whether prescription, over-the-counter, or illegal.

7.2. You used marijuana, but you are no longer high

Chemical tests can show that you used marijuana, but not how long ago you used it.  Casual users may test positive for marijuana for up to 12 hours after they smoked it.  Frequent users may have positive blood tests even if it has been days since they last smoked or consumed pot. 52

Urine tests reveal the presence of THC metabolites for even longer –up to four weeks in the case of chronic users.

This is why prosecutors in VC 23152(e) DUI marijuana cases can't rely on chemical tests as “smoking guns.” A good DUI defense lawyer will make this clear to the prosecutor and -- if the DUI of marijuana case goes to trial -- to the judge or jury.

Example: Pete uses marijuana to help with chronic insomnia.  On his way home late one night, he is pulled over for weaving between lanes on the freeway. The California Highway Patrol officer who pulls him over notes that Pete has bloodshot eyes and seems tense. Pete fails a field sobriety test, and a preliminary breath test is negative for alcohol.

The officer arrests Pete for DUI drugs instead. A blood test shows the presence of THC in Pete's blood. He is charged with Vehicle Code 23152(e) VC driving under the influence of marijuana.

However, when Pete was arrested, it had been a full day since he had last smoked marijuana.  He failed the FST not because he was high, but because he was tired.

Pete and his attorney in his DUI of marijuana case are familiar with the studies showing that Pete could test positive for THC even though he was no longer under the effects of marijuana.  By using these studies -- along with evidence of Pete's customary marijuana use -- they are able to convince the prosecutor to dismiss the VC 23152(e) DUI marijuana charges.

7.3. You used marijuana, but your driving wasn't impaired

Even if the prosecutor can prove that you recently used marijuana, he/she must prove that your driving was actually impaired in order for you to be guilty of Vehicle Code 23152(e) VC DUI of marijuana. 53

A positive marijuana test alone doesn't prove you were too high to drive safely.  As Santa Ana criminal and DUI defense lawyer John Murray 54 points out:

“No one agrees exactly how much THC in your blood makes you ‘impaired.' You are only guilty of DUI marijuana if the prosecutor can prove that your pot use affected your ability to drive safely -- and they can't always do that.”

Even the “experts” don't agree as to what impact marijuana has on driving. A DUI defense attorney who understands the current data can often successfully argue that a stoned driver is not necessarily an impaired one under California law.

One important note of caution: it is also a crime in California to drive while addicted to a drug (Vehicle Code 23152(c) VC). Addicted driving is considered a form of California DUI and carries DUI penalties.

Prosecutors rarely charge people with driving while addicted to a drug. But if you are caught driving with marijuana in your system and argue that you were not impaired under Vehicle Code 23152(e) VC in spite of this, a zealous prosecutor could try to make the case that you broke the law by driving while addicted to marijuana.

7.4. Medical marijuana use is not a defense to DUI marijuana

It is not a defense to DUI drug charges that you had the legal right to use marijuana under California's medical marijuana laws. 55

California Vehicle Code 23152(e) VCapplies to all drugs, not just illegal ones.  If a drug impairs your driving, it doesn't matter whether it prescription or it was medically necessary.  If your ability to drive safely is impaired by marijuana, you must not drive.

It is also not a defense to DUI marijuana charges that your impairment caused in part by something other than marijuana -- for example, because you were tired. 56 If your impairment resulted even partially from the use of marijuana, you can be found guilty under 23152(e) VC.

8. DUI Marijuana (VC 23152(e)) and Related Offenses

If you are arrested for DUI marijuana under Vehicle Code 23152(e) VC, you may find yourself facing additional charges as well. These might include:

8.1. Unlawful possession of marijuana for personal use

Hand-holding-bag-containing-two-marijuana-joints
Defendants are sometimes charged with possession of marijuana as well as with DUI of marijuana.

If an officer finds marijuana on your person or in your car when you are arrested for VC 23152(e) DUI of marijuana, you may face charges under Health & Safety Code 11357(B) HS, California's possession of marijuana law.

Possession of no more than one (1) ounce of marijuana (other than concentrated cannabis) is an infraction, punishable by a fine of up to one hundred dollars ($100). 57

Possession of more than one (1) ounce is a misdemeanor. Potential penalties include up to six (6) months in county jail and up to five hundred dollars ($500) in fines. 58

Possession of concentrated cannabis is a "wobbler" offense.  If charged as a misdemeanor, the penalties can include up to one (1) year in county jail and/or a five hundred dollar ($500) fine. 59 As a felony, the penalty is 16 months, or two or three years in county jail. 60

8.2. Vehicle Code 23222 VC possession of marijuana while driving

Possession of marijuana while driving (Vehicle Code 23222 VC) is also frequently charged along with DUI of marijuana (California Vehicle Code 23152(e) VC). 61

As long as you possess no more than one (1) ounce of marijuana (other than concentrated cannabis), possession while driving is an infraction, with a maximum fine of one hundred dollars ($100). 62

But if you drive in possession of more than one (1) ounce of marijuana, or with concentrated cannabis (hashish), you may be charged with the more serious crime of transporting marijuana under Health & Safety Code 11360 HS.

Call Us for Help…

DUI-defense-firm-call-center

If you or your loved one is charged with Vehicle Code 23152(e) VC DUI marijuana, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone.

We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

To learn about DUI with marijuana in Nevada, please visit our page on DUI with marijuana in Nevada.



Legal References:

  1. Vehicle Code 23152(e) VC – Driving under influence; blood alcohol percentage; presumptions [DUI marijuana]. (“(e) It is unlawful for a person who is under the influence of any drug [including marijuana] to drive a vehicle.”)

    See also Vehicle Code 23152(a) VC. (“(a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.”)

  2. Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2100 – Driving Under the Influence [of Marijuana]. (“A person is under the influence if, as a result of (drinking [or consuming] an alcoholic beverage/ [and/or] taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.”)

    See also People v. Enriquez (1996) 42 Cal.App.4th 661, 49 Cal.Rptr.2d 710 (“To be 'under the influence' within the meaning of the Vehicle Code [including Vehicle Code 23152(e) VC], the ... drug(s) must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties.”).

  3. Vehicle Code 23536 VC – Conviction of first violation of § 23152 [DUI marijuana]; punishment. (“(a) If a person is convicted of a first violation of Section 23152, that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, nor more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1,000). . . . (c) The person's privilege to operate a motor vehicle shall be suspended by the department under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550.”)
  4.  Vehicle Code 23152 (a) and (e) VC [DUI marijuana], endnote 1, above.

    See also Vehicle Code 23152(f) VC. ("It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.")

    See also CALCRIM 2110 [definition of drug applies to VC 23152(e) DUI of marijuana]. ("[A drug is a substance or combination of substances, other than alcohol,that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.]")

  5.  CALCRIM 2100 – Driving Under the Influence [of Marijuana], endnote 2 above.
  6. Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 280 Cal.Rptr. 745.
  7. CALCRIM 2100 – Driving Under the Influence [of Marijuana]. ("To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant drove a vehicle; AND 2 When (he/she) drove, the defendant was under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug].")
  8. People v. McGinnis (1953) 123 Cal.App.2d Supp. 945, 267 P.2d 458 (holding that the guilt of an accused, including in DUI marijuana cases, may be established by circumstantial as well as by direct evidence, and that the right to draw proper inferences from the evidence is a function of the jury).
  9. Like DUI of drugs/marijuana under Vehicle Code 23152(e) VC, DUI of alcohol under Vehicle Code 23152(a) requires proof that your ability to drive safely was actually impaired due to the consumption of alcohol.  However, under Vehicle Code 23152(b) VC, you are deemed intoxicated as a matter of law if you have a blood alcohol concentration (BAC) of .08 or greater. 
  10. Maggie Koerth-Baker, Driving Under the Influence, of Marijuana, NYTimes.com, Feb. 17, 2014.
  11. See, e.g., National Public Radio, No Easy Answers For DUI Concerns As Marijuana Gains Support, February 23, 2014.
  12. People v. Macknic (1967) 257 Cal.App.2d 370, 64 Cal.Rptr. 833 (holding that detailed testimony by an expert as to the defendant's observable physical and mental reactive state was sufficient to prove that defendant was “under the influence” of a narcotic drug). The court in Macknic also held that the police were under no duty to offer the defendant a chemical test.  In that the event that they do not do so, it is up to the defendant to request one if he/she wants to obtain exculpatory evidence for a DUI marijuana or other DUI drugs charge.
  13. People v. McGinnis, endnote 8.
  14. See e.g., People v. Weathington (1991) 231 Cal.App.3d 69, 282 Cal.Rptr. 170 (“If the issue is whether the ability of the driver to operate his vehicle is impaired [when a person is DUI, or DUI marijuana], the manner in which the vehicle is driven is evidence which tends to prove or disprove that fact.”). In Weathington, the court found that there was substantial evidence to convict the defendant of driving impaired due to alcohol on the basis of not only a chemical test revealing a high BAC, but due to his manner of driving, his slurred speech, his swaying, staggering walk, and statements regarding his consumption of alcohol. This reasoning can be applied to DUI of marijuana.
  15. See Marijuana and DUI: What Californians Need to Know, SFGate.com, Jan. 14, 2014.
  16. Marijuana Use and Its Effects, WebMD.
  17. Vehicle Code 23612(a)(1)(B) -- Implied consent to blood testing for DUI of marijuana under VC 23152(e). ("A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood test is unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.")
  18. Vehicle Code 23612(a)(2)(B) VC -- Required chemical testing for DUI marijuana. ("If the person is lawfully arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, the person has the choice of whether the test shall be of his or her blood or breath, and the officer shall advise the person that he or she has that choice.")
  19. Vehicle Code 23612(a)(2)(C) VC – Blood testing for DUI drugs/DUI marijuana. (“A person who chooses to submit to a breath test may also be requested to submit to a blood test if the officer has reasonable cause to believe that the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug and if the officer has a clear indication that a blood test will reveal evidence of the person being under the influence. The officer shall state in his or her report the facts upon which that belief and that clear indication are based. The officer shall advise the person that he or she is required to submit to an additional test. The person shall submit to and complete a blood test. If the person arrested is incapable of completing the blood test, the person shall submit to and complete a urine test.”)
  20. Same
  21. See Vehicle Code 13353 VC
  22. Jason C. Laberge and Nicholas J. War, Research Note: Cannabis and Driving — Research Needs and Issues for Transportation Policy, The Journal of Drug Issues (2004).
  23. National Highway Traffic Safety Administration (NHTSA), Drug and Human Performance Fact Sheet.
  24. Same.
  25. Same.  The report notes that some investigators have demonstrated residual effects in specific behaviors -- such as complex divided attention tasks – for up to 24 hours [more mixed evidence on the implications of driving under the influence of marijuana].
  26. Laberge and War, endnote 22.
  27. Same
  28. Same
  29. Same
  30. Mateus M. Bergamaschi  and José Alexandre S. Crippa, Why should cannabis be considered doping in sports? May 15, 20013
  31. NORML, Drug Testing Tips.
  32. Chemicals in marijuana 'protect nervous system' against MSChemicals in marijuana 'protect nervous system' against MS, Medical News Today, October 3, 2013.
  33. See, e.g., A.J. Hampson, M. Grimaldi, J. Axelrod and D. Wink, Cannabidiol and (−)Δ9-tetrahydrocannabinol are neuroprotective antioxidants Proc. Natl. Acad. Sci. USA Vol. 95, pp. 8268–8273, July 1998 (“Like THC, cannabidiol is a natural component of the marijuana plant, Cannabis sativa, although unlike THC, cannabidiol does not activate cannabinoid receptors and so is devoid of psychoactive effects.”)
  34. Medical News Today, endnote 32.
  35. E.G. Russo, Clinical endocannabinoid deficiency (CECD): can this concept explain therapeutic benefits of cannabis in migraine, fibromyalgia, irritable bowel syndrome and other treatment-resistant conditions? Neuro Endocrinol Lett., Feb.-April 2004.
  36. Laberge and War, endnote 22.
  37. Erika Aguilar, LA DUI checkpoints will now test for drugs with oral swab kits (video), Southern California Public Radio, December 27, 2013.

    See also Theo Douglas, Kern's use of oral swab in DUI case watched nationwide, Bakersfield.com, Jan. 10, 2016.

  38. See LAPD sets up drug detection swab test at checkpoints, Aljazeera America, December 30, 2013
  39. See, e.g., The Green Rush Begins: Investors Get In On Pot's Ground Floor, National Public Radio, February 16, 2014.
  40. The National Institute on Drug Abuse reports that people who use marijuana generally have more trouble than other drivers staying in their lanes, doing multiple tasks at once, and maintaining concentration on long, monotonous drives. National Public Radio, endnote 11.

    See also: Laberge and War, endnote 22; and Harry Klonoff, Marijuana and Driving in Real-Life Situations, Science Vol. 186, October 25, 1974.

  41. See National Highway Traffic Safety Administration, endnote 23. (“It is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects… [and] currently impossible to predict specific effects based on THC-COOH concentrations [i.e., chemical tests are unreliable for establishing whether a person is DUI marijuana].”).

    Six states have set legal limits for THC concentration in the blood.  California is not, however, one of them. See Koerth-Baker, endnote 10.

  42. Koerth-Baker, endnote 10.
  43. Same
  44. Laberge and Ward, endnote 22.
  45. See, e.g., Vehicle Code 23536 VC – Conviction of first violation of § 23152 [DUI marijuana]; punishment, endnote 3.
  46. Same
  47. Vehicle Code 23153 VC -- DUI or DUI marijuana causing injury. ("(e) It is unlawful for a person, while under the influence of any drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. (f) It is unlawful for a person, while under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver…")
  48. Vehicle Code 23554 VC -- Penalties for DUI or DUI marijuana causing injury. ("If any person is convicted of a first violation of Section 23153, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 90 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be suspended by the Department of Motor Vehicles pursuant to paragraph (2) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550.")
  49. See California Code of Regulations, Title 17 (re DUI) 1219.1. Blood Collection and Retention, and 1219.2. Urine Collection and Retention [applies to testing in Vehicle Code 23152(e) VC DUI marijuana cases].
  50. See e.g., The ABCs of Marijuana and Drug Testing.
  51. Quest Diagnostics claims the use of Protonix should not result in a confirmed positive drug test for marijuana [in DUI marijuana cases] or its metabolite. See Protonix and Marijuana Drug Screens, Quest Diagnostics Solutions, March 17, 2010.

    However, Wyeth Pharmaceuticals' prescribing information for Protonix carries the following warning: “7.5 False Positive Urine Tests for THC There have been reports of false positive urine screening tests for tetrahydrocannabinol (THC) in patients receiving proton pump inhibitors. An alternative confirmatory method should be considered to verify positive results.”

  52. NHTSA, endnote 23.
  53. See e.g., People v. Torres (2009)173 Cal.App.4th 977, 93 Cal.Rptr.3d 303 (holding that the potential of methamphetamine to impair driving was insufficient to convict defendant of DUI drugs [and by extension DUI of marijuana] absent expert evidence showing that his drug use actually affected his driving ability [emphasis added]).
  54. Santa Ana criminal and DUI defense lawyer John Murray is one of Southern California's leading experts on DUI and DUI marijuana criminal defense. He has considerable expertise in drunk and impaired driving law and a stellar track record of success at DMV hearing locations throughout southern California, including those in the City of Commerce, Covina, El Segundo, Oxnard, San Bernardino, and Van Nuys.
  55. CALCRIM 2100. (“[It is not a defense that the defendant was legally entitled to use the drug.]”)
  56. Same. (“[If the defendant was under the influence of (an alcoholic beverage/ [and/or] a drug), then it is not a defense that something else also impaired (his/her) ability to drive.]”)
  57. Health and Safety Code 11357(b) -- Possession of marijuana  [often charged along with Vehicle Code 23152(e) VC DUI of marijuana].
  58. Health and  Safety Code 11357(c) -- Possession of marijuana  [often charged along with Vehicle Code 23152(e) VC DUI of marijuana].
  59. Health and Safety Code 11357(a) -- Possession of concentrated cannabis [often charged along with Vehicle Code 23152(e) VC DUI of marijuana].
  60. Penal Code 1170(h)(1). Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.
  61. Vehicle Code 23222(b) VC -- Possession of marijuana while driving [often charged along with VC 23152(e) DUI of marijuana].
  62. Same

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