California “Driving under the Influence of Marijuana” Criminal Defense Lawyers

California Vehicle Code 23152(a) VC – DUI Marijuana

California DUI law makes it illegal to drive under the influence of marijuana--in spite of studies casting doubt on whether marijuana impairs driving ability at all. Moreover, a person who possesses weed at the time of being arrested for DUI marijuana may face two additional charges:

Health & Safety Code 11357(b) | Possession of Marijuana; and
Vehicle Code 23222 | Possession of Marijuana While Driving

In this article, our California marijuana lawyers will provide a comprehensive guide to understanding “driving under the influence of marijuana” -- a crime under California Vehicle Code 23152(a) -- by addressing the following:

Driving under the Influence of Marijuana -- California Vehicle Code 23152(a) VC

How Does the Prosecutor Prove that I was DUI Marijuana under California Law?

How Do I Fight a Charge that I was DUI Marijuana?

Penalties, Punishment and Sentencing for DUI Marijuana

After reading this article, if you have additional questions or would like to discuss the facts of your case, we invite you to contact us.

Driving under the Influence of Marijuana

California Vehicle Code 23152(a) VC criminalizes driving under the influence of alcohol and/or drugs. Proving that you’re DUI alcohol is definitely the easiest for the prosecution. Proving that you’re DUI drugs (DUID) becomes more difficult. Proving that you’re DUI marijuana or “dope driving” is perhaps the most challenging.

The primary ingredient in marijuana (also commonly referred to as pot, bud, weed, grass, dope, ganja, and Mary Jane) is delta-9-tetrahydrocannabinol or “THC”. This chemical lingers in the body long after the effects of ingesting marijuana wear off.

The life span of THC ranges from hours to months, depending on a variety of issues, including:

• The amount of marijuana you consumed,



• The concentration of the THC, and



• Your personal tolerance to marijuana.

All these factors make it difficult to prove that you were under the influence of marijuana at the time you were driving.

How Does the Prosecutor Prove that I was DUI Marijuana under California Law?

To be convicted of a California Marijuana DUI under Vehicle Code 23152(a) VC, you must be impaired to such a degree that you no longer have the “ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances”.

*It should be noted that there is no requirement that a California DUID charge specify of which drug you are under the influence. However, doing so makes the prosecutor’s case more credible. Here, we focus on a marijuana prosecution.

In order to prove that you were DUI marijuana in California, the prosecutor typically relies on the following:

1. Your driving pattern,



2. Your physical appearance,



3. Your performance on the Field Sobriety Tests (FSTs), and



4. A chemical test revealing marijuana in your bloodstream.

Numbers 1-3 will be introduced through testimony from the arresting officer and the Drug Recognition Evaluator (DRE). Number four will be presented through the testimony of a criminalist from your local law enforcement agency’s crime lab.

• The Arresting Officer’s Testimony Regarding a “Typical” California DUI

The arresting officer will testify about all of the reasons he/she believed that you were DUI of Marijuana. Testimony will address the fact that your (1) driving, (2) physical appearance, and (3) performance on the FSTs were all consistent with someone who was "high" of under the influence of marijuana.

The officer will further testify that the results of your breath show that alcohol (alone) cannot explain your level of impairment…which is why he/she requested a DRE to assist in the roadside DUI investigation.

• Example: California Highway Patrol Officer Bill stops Joe for failing to signal before changing lanes on the Long Beach Freeway. When he approaches Joe, Officer Bill notices that Joe’s eyes are bloodshot and his breath stale.

  Suspecting Joe to be DUI, Officer Bill asks Joe to perform FSTs. After concluding that he “didn’t perform them as demonstrated”, he gives Joe a breath test that reveals a relatively low BAC of 0.02%. Now the officer suspects that Joe's intoxication must be from drugs rather than alcohol. So Officer Bill requests a DRE to come to the scene and aid in the investigation.

• The DRE’s Testimony Regarding a California DUI Marijuana Investigation

A DRE has two primary responsibilities: (1) to determine if someone is under the influence of a drug and, if so, (2) to determine the type of drug the individual has consumed.

If the DRE concludes that you are DUI of marijuana, he/she would likely testify that you displayed the signs/symptoms consistent with marijuana use. The most common of these include, but are not limited to, the following:

• Dilated pupils,



• Elevated pulse rate,



• Elevated blood pressure,



• Giving off the odor of marijuana,



• Eyelid and body tremors,



• Relaxed or uninhibited demeanor,



• Dry mouth, and



• Short-term memory impairment.

The DRE will testify in detail about all of the sign/symptoms that you exhibited. The DRE will then explain that these signs/symptoms are typically only present in someone who has been recently using marijuana. The DRE will finally testify that based on his/her training and experience, you were properly arrested for DUI marijuana.

• Referring back to the previous example: DRE Smith noted Joe’s elevated pulse, re-administered Joe’s FSTs, and then concluded that Joe was DUI marijuana.

  Joe’s Long Beach DUI marijuana attorney would argue that Joe’s blood-shot eyes and stale breath may have been caused by a variety of factors: drinking, smoking cigarettes, being around other smokers, being exhausted, and still not having brushed his teeth from the night before.

  Joe’s DUID attorney would argue that anyone being investigated for DUI would be nervous and likely have an elevated pulse. Joe’s DUI marijuana lawyer would also address the fact that Joe hadn’t slept the night before, because he was up the entire night “partying” with his friends.

  Joe had, in fact, eaten some “pot brownies” and was drinking at the party, but that was over twelve hours before he was stopped by Officer Bill. The effects of marijuana would have certainly worn off hours before driving.

• The Chemical Test Revealed that You had THC in Your System

The prosecutor will finally introduce evidence that your blood or urine test revealed marijuana in your system. This, the prosecutor will argue, corroborates both the officer’s observations, proving that you are guilty of DUI marijuana.

• Taking a final look at Joe: Joe’s Long Beach “dope driving” defense lawyer would bring in an expert witness to testify that just because marijuana was in Joe’s system doesn’t mean Joe was under its influence.

How Do I Fight a Charge that I was DUI Marijuana?

Fortunately, there are a variety of defenses that a California “driving under the influence of marijuana” defense attorney could present on your behalf.

• Marijuana’s Effect on Driving Impairment is Relatively Insignificant ¹

This argument is critical to the defense. It means that marijuana use doesn’t render you “unable to drive with the caution characteristic of a sober person” -- the very definition of California DUI.

Despite the stereotyped myths, studies reveal that marijuana has no significant impact on driving abilities. Unlike alcohol, it is rarely linked to causing accidents. The consensus is that alcohol promotes risk-taking while marijuana promotes conservative driving.

This is because drivers who are under the influence of marijuana are aware of their impairment and compensate by driving more carefully…something those under the influence of alcohol aren’t able to do.

• There is No Accurate Test to Determine When You Used Marijuana ²

THC’s effects last only a few hours. THC itself can remain in your body for days, weeks, or even months. As a result…

It is virtually impossible to detect when you actually used marijuana. Current chemical tests can only detect that marijuana was used, not when it was used, or whether it was still producing an intoxicating effect when you got pulled over. All that matters is whether you were under the influence of marijuana at the time you drove.

As Michael Scaffidi, one of Riverside’s top DUI attorneys and a former Ontario California Police Officer states, “People are routinely wrongly prosecuted for California DUI marijuana. It’s my job to educate the jury that simply having marijuana in your system doesn’t make you guilty of driving under its influence.”

• Chemical Tests Don’t Determine How Much Marijuana was Used

The majority of studies that address marijuana’s insignificant effect on driving ability refer to “preferred dose levels”. A preferred dose level is the amount it takes for the average recreational marijuana user to achieve his/her desired psychochemical effects (or "high").

Preferred dose levels are similar to low doses of alcohol, equaling about a 0.04% blood alcohol content (BAC) for alcohol impairment. ³

That being said, chemical blood or urine tests don’t typically test for quantity, but rather presence. As a result, these drug tests are often meaningless. This is because

1. California DUI Marijuana law has no “per se” violation like the 0.08% standard used to prosecute an alcohol-related DUI under California Vehicle Code 23152(b) VC, and



2. There is no clear correlation between the amount of marijuana in your system and your level of intoxication. Numerous factors affect a person's mental and physical sensitivity to marijuana (tolerance, height, weight, frequency of use, potency of drug, etc.).

A blood or urine test that reveals marijuana’s presence (at any level) is actually irrelevant to the heart of the charge…that is, whether you were driving under its influence.

Obviously other “typical” California DUI defenses may apply as well. Questions about the procedures that were followed during your DUI investigation (including those used to collect and store your blood or urine sample) will always be challenged. For a more detailed explanation of these types of issues, please review our article on California DUI defenses.

Penalties, Punishment and Sentencing for DUI Marijuana in California

Punishment for a California DUI marijuana varies, depending on (1) the facts of your case, and (2) your criminal history (with particular emphasis on drug and/or alcohol offenses). Below are the sentencing guidelines for a first-time California DUI marijuana conviction. For a comprehensive guide to California DUI sentencing, please review our article on DUI Penalties.

• Three to five years of informal probation,



• Up to one year in a county jail,



• A maximum $1,000 fine (before penalty assessments are added)



• A court-approved DUI school, and



• A six-month court-ordered California driver’s license suspension

For more information or to confidentially discuss your California DUI marijuana case, don’t hesitate to contact us. We have local DUI law offices in Rancho Cucamonga, Van Nuys, Orange County and all surrounding Southern California areas.

Facing DUI Marijuana charges in Nevada?

Nevada DUI marijuana law is a lot stricter than California's . . . as long as your blood or urine contains the minimum prohibited amount, you can be charged for DUI even if you're not "under the influence." If you've been accused of any DUI crime in Nevada, please phone our Las Vegas criminal defense attorneys at 702-DEFENSE (702-333-3673) for a free consultation. And to learn more about the minimums, defenses and penalties, click on our information page: Nevada DUI marijuana law.

Additional Resource and References:

Marijuana Anonymous-
Provides a free, nondenominational 12-step program to help those addicted to marijuana.

 

¹ NORML, Cruising on Cannabis (2004)

² New Scientist, Alcohol Impairs Driving more than Marijuana (2002)

³ Robbe HWJ, Marijuana Use and Driving (1994)

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