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—just like driving under the influence of alcohol under Vehicle Code 23152(a) VC.1

The legal definition of being “under the influence” of marijuana is that—as a result of consuming marijuana—your mental abilities were so impaired that you were unable to drive with the caution of a sober person, using ordinary care, under similar circumstances.2

Penalties

The penalties for Vehicle Code 23152(e) VC California DUI marijuana are the same as the California DUI penalties for driving under the influence of alcohol. Penalties for a first-time DUI of marijuana may include:

Legal defenses

If you are charged with DUI marijuana in California, there are several powerful legal defenses you can use to help your case.

First, you can fight a charge that you were DUI marijuana by arguing that—even if you had used marijuana—your mental abilities were not significantly impaired. The impact of marijuana on your ability to drive safely is much less than that of alcohol.4

Smoking_joint

Second, you can fight the allegations that you had used marijuana at all. Unlike with alcohol, where Breathalyzer tests can reliably show how much you consumed, chemical tests cannot reliably show that you consumed marijuana recently—or how much you consumed.5

Example: Pete is pulled over for weaving between lanes on the freeway late at night. The highway patrol officer who pulls him over sees that he has bloodshot eyes and seems tense. Pete then fails a field sobriety test (“FST”)—but the Breathalyzer indicates that he does not have significant alcohol in his system.

The officer then suspects DUI of drugs instead. He arrests Pete and brings him to the police station for a urine test. The urine test shows that Pete has THC (the active ingredient in marijuana) in his blood. Pete is charged with DUI marijuana.

But in fact, when Pete was arrested, it had been a full day since he had last smoked marijuana. He failed the field sobriety test because he was sleep-deprived and nervous—not because he was high.

With the help of his criminal defense attorney, Pete is able to point out the unreliability of urine tests for marijuana exposure. They convince the prosecutor to dismiss the charges.

In order to help you understand the crime of driving under the influence of marijuana in California, our California criminal defense attorneys will address the following:

1. The Legal Definition of DUI Marijuana in California

1.1. Elements of California DUI marijuana
1.2. Proving DUI marijuana

2. Penalties for Vehicle Code 23152(e) DUI Marijuana

3. Legal Defenses to DUI Marijuana Charges

4. Vehicle Code 23152(e) DUI Marijuana and Related Offenses

4.1. Health & Safety Code 11357(b) possession of marijuana
4.2. Vehicle Code 23222 VC possession of marijuana while driving

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

You may also find helpful information in our related articles on Driving Under the Influence of Alcohol Under Vehicle Code 23152(a) VC; California DUI Penalties, Punishment & Sentencing; Penalties for a First-Time DUI in California; Informal (Summary) Probation in California; Suspension of Your Driver's License for a First-Time California DUI; Common Legal Defenses to California Crimes; California's DUI of Drugs Laws; California's Medical Marijuana Laws; Field Sobriety Tests in DUI Cases; Understanding Probation & Probation Violations in DUI Cases; Legal Definition of a California Misdemeanor; Felony DUI Penalties in California; Health & Safety Code 11357(b) HS California's Possession of Marijuana Law; Legal Definition of an Infraction in California Law; Possessing Marijuana While Driving Vehicle Code 23222(b) VC; and Transporting Marijuana Under Health & Safety Code 11360 HS.

1. The Legal Definition of DUI Marijuana in California

DUI marijuana is a crime because of Vehicle Code 23152 VC. This law makes it a crime to drive

  • Under the influence of alcohol,
  • Under the influence of drugs (DUI of drugs), including marijuana, or
  • Under the combined influence of alcohol and drugs.6
1.1. Elements of California DUI marijuana

In order to show that you are guilty of driving under the influence of marijuana, the prosecutor must prove the following “elements” of the crime:

  1. You drove a vehicle, and
  2. When you drove, you were “under the influence” of marijuana (or the combined influence of marijuana and alcohol).7
Mj_leaf_cigarette

A person is considered to be “under the influence” of marijuana if—as a result of consuming marijuana—his/her mental or physical abilities are so impaired that s/he can no longer drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.8

It is not a defense to DUI marijuana charges that you had the legal right to use marijuana—for example, because of California's medical marijuana laws.9

It is also not a defense that your driving ability was impaired in part because of another factor in addition to marijuana.10

Example: Cassie is a cancer patient. She has a medical marijuana ID card that allows her to use marijuana to treat the side effects of her chemotherapy.

One of the side effects of Cassie's chemotherapy is terrible insomnia. One day, after she has been up most of the previous night, she eats some “pot brownies” and then drives to do some errands. She is pulled over for driving under the speed limit on the freeway and arrested for DUI marijuana.

Cassie's impaired driving was no doubt due in part to the fact that she was sleep-deprived. But this will not help her defend against the DUI marijuana charges—and neither will the fact that she consumed marijuana legally.

1.2. Proving DUI marijuana

Proving DUI marijuana presents serious challenges for law enforcement officials.

The evidence a prosecutor can usually put forth to support Vehicle Code 23152(e) VC DUI marijuana charges includes:

  1. Your driving pattern,
  2. Your physical appearance,
  3. Your performance on a Field Sobriety Test (FST), and/or
  4. A chemical test revealing marijuana in your bloodstream.
Fst_one_leg_stand
The Field Sobriety Test used in DUI alcohol arrests is one way an officer might determine whether you are DUI marijuana.

The first three items are usually introduced through testimony from the officer who stopped you and, in some cases, a “ Drug Recognition Evaluator” (DRE). If the officer doing the traffic stop suspects you may be under the influence of drugs, s/he will call a DRE to the scene.11

Signs of marijuana use that the officer and/or DRE might look for include:

  • Dilated pupils,
  • Rapid heart rate,
  • Rapid breathing,
  • Giving off the odor of marijuana,
  • Red eyes,
  • Dry mouth, and/or
  • Slowed reaction time.12

Chemical tests for marijuana exposure are problematic. These tests look for the presence of delta-9-tetrahydrocannabinol or “THC”—the active ingredient in marijuana.13

THC can be detected in urine samples long after a person has used marijuana—and long after s/he has stopped being “under the influence” to any meaningful degree.14 As a result, “false positives” for marijuana impairment based on chemical tests are extremely common.

Thc_test

Example: Adam is a regular marijuana user and smokes at least 3-4 times a week. One day he runs a stop sign in his car and is pulled over. The officer smells marijuana on his clothes and arrests him for DUI marijuana.

Ironically, this happens on a day when Adam has not smoked any pot. But his chemical test turns up positive for THC in his blood—something which is not uncommon for frequent marijuana users.

2. Penalties for Vehicle Code 23152(e) DUI Marijuana

Vehicle Code 23152(e) VC DUI marijuana leads to the same penalties as DUI alcohol.15

For a first offense, the penalties 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.16
License_suspended

Those penalties apply to DUI marijuana as a California misdemeanor. If you are charged with DUI marijuana as a felony—for example, because you caused a death or injury17—then you will face felony DUI penalties such as:

  • A California state prison sentence,18 and/or
  • A suspension of your driver's license for one (1) year.19

3. Legal Defenses to DUI Marijuana Charges

Typical California DUI defenses apply to DUI marijuana as well as to DUI alcohol.

But a few defenses are especially relevant if you are charged with DUI marijuana—or with driving under the combined influence of marijuana and alcohol. These are:

You may have consumed marijuana, but your driving wasn't actually impaired

According to Santa Ana criminal and DUI defense lawyer John Murray20:

“The fact is that drivers who are under the influence of marijuana cause only a fraction of the crashes that drunk drivers do. And no one understands exactly how much THC in your blood is needed for you to be ‘impaired.' You are only guilty of DUI marijuana if the prosecutor can prove that your pot smoking affected your ability to drive safely—and they can't always do that.”

Mj_plant

The studies don't agree about what impact marijuana has on driving abilities.

But even the studies that show a link between smoking pot and accidents estimate that driving high merely doubles your risk of getting in an accident. In contrast, driving drunk can increase the risk of an accident up to 20 times for younger drivers.21

This disparity is because stoned drivers tend to underestimate their ability to drive, and to drive more slowly than normal—in contrast to drunk drivers who overestimate their abilities and drive faster than normal.22

If your DUI defense attorney understands the current data, s/he can focus on challenging the officer's account that your driving was impaired—and arguing that a stoned driver is not necessarily an impaired driver by the standards of California law.

You were not under the influence of marijuana at all

As we discussed above, the chemical tests for determining the presence of THC in your blood don't reliably tell us when you last consumed marijuana—or how impaired you are. Frequent pot smokers may test positive for being under the influence of marijuana even if it has been days since they last smoked.23

As a result, prosecutors in DUI marijuana cases can't rely on chemical tests as “smoking guns.” A good DUI defense lawyer will understand how shaky these tests are as evidence—and will make this clear to the prosecutor and, if it comes to that, the judge or jury.

4. Vehicle Code 23152(e) DUI Marijuana and Related Offenses

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

4.1. Health & Safety Code 11357(b) possession of marijuana

If you are arrested for DUI marijuana, the police or CHP officer may find marijuana on your person or in your car. You may then also face charges under Health & Safety Code 11357(B) HS California's possession of marijuana law.

Traffic_stop_night

The “elements” of California marijuana possession are:

  1. You possessed marijuana,
  2. You knew that you possessed marijuana,
  3. You knew that it was a drug, and
  4. You possessed enough marijuana that it could be used as a drug.24

Possession of marijuana is an infraction, punishable by a fine of up to one hundred dollars ($100), if you possess no more than one (1) ounce of marijuana (other than concentrated cannabis).25

If you possess more than one (1) ounce, then you may be charged with marijuana possession a misdemeanor. Potential penalties include up to six (6) months in county jail and up to five hundred dollars ($500) in fines.26

4.2. Vehicle Code 23222 VC possession of marijuana while driving

Possession of marijuana while driving is also a separate crime under Vehicle Code 23222 VC.27

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).28

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

Call Us for Help…

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If you or loved one is charged with Vehicle Code 23152(e) VC marijuana DUI and you are looking to hire an attorney for representation, 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.”)

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 See, e.g., Maggie Koerth-Baker, Driving Under the Influence, of Marijuana , NYTimes.com, Feb. 17, 2014.

5 See same.

6 Vehicle Code 23152(e) VC – DUI marijuana, endnote 1, above.

See also Vehicle Code 23152(a) VC, endnote 1, above.

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

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 See same.

9 See same. (“[It is not a defense that the defendant was legally entitled to use the drug.]”)

10 See 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.]”)

11 See Marijuana and DUI: What Californians Need to Know , SFGate.com, Jan. 14, 2014.

12 Marijuana Use and Its Effects , WebMD.

13 Cannabis/Marijuana , NHTSA Drugs and Human Performance Fact Sheets.

14 See same.

15 See, e.g., Vehicle Code 23536 VC – Conviction of first violation of § 23152 [DUI marijuana]; punishment, endnote 3, above.

16 See same.

17 Vehicle Code 23153 VC – Driving under the influence [of marijuana] and causing bodily injury to another person. (“(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.”)

18 Vehicle Code 23554 VC – First offense [of felony DUI marijuana]; punishment. (“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.”)

19 Vehicle Code 13352 VC – Conviction for driving under the influence [of marijuana]; terms of suspension or revocation of license. (“(a)(2) Upon a conviction or finding of a violation of Section 23153 punishable under Section 23554, the privilege shall be suspended for a period of one year.”)

20 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.

21 Maggie Koerth-Baker, Driving Under the Influence, of Marijuana, endnote 4, above.

22 See same.

23 Cannabis/Marijuana, NHTSA Drugs and Human Performance Fact Sheets, endnote 13, above.

24 California Jury Instructions - Criminal (“CALJIC”) 16.030 – California's law against personal possession of concentrated cannabis or marijuana [may be charged along with DUI marijuana]. ("(Health and Safety Code � 11357, subdivisions (a), (c), (d)). [Defendant is accused [in Count[s] ] of having violated section 11357, subdivision [(a)][(c)][(d)] of the Health and Safety Code, a misdemeanor.] Every person [18 years of age or older] who unlawfully possesses [any concentrated cannabis] [more than 28.5 grams of marijuana, other than concentrated cannabis,] [not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within any school providing instruction in kindergarten or any of the grades 1 through 12 during hours the school is open for classes or school-related programs] is guilty of a violation of Health and Safety Code section 11357, subdivision [(a)][(c)][(d)], a misdemeanor. There are two kinds of possession: actual possession and constructive possession. "Actual possession" requires that a person knowingly exercise direct physical control over a thing. "Constructive possession" does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. One person may have possession alone, or two or more persons together may share actual or constructive possession. In order to prove this crime, each of the following elements must be proved: 1 The defendant exercised control over or the right to control a certain controlled substance; 2 The substance was [concentrated cannabis] [more than 28.5 grams of marijuana, other than concentrated cannabis,] [not more than 28.5 grams of marijuana, other than concentrated cannabis]; 3 The defendant knew of its presence; 4 The defendant knew that the substance had a narcotic character; [and] 5 The substance was in an amount sufficient to be used as [concentrated cannabis] [marijuana] [; and] [.] [6 The defendant was 18 years of age or older and possessed the marijuana upon the grounds of, or within any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs.]")

25 Health & Safety Code 11357 HS – Possession of marijuana [may be charged along with DUI marijuana]. (“(b) Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).”)

26 See same. (“c) Except as authorized by law, every person who possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by imprisonment in the county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.”)

27 Vehicle Code 23222 VC – Possession of open container containing alcoholic beverage or marijuana while driving a motor vehicle; penalty. (“(b) Except as authorized by law, every person who possesses, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, not more than one avoirdupois ounce of marijuana, other than concentrated cannabis as defined by Section 11006.5 of the Health and Safety Code, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).”)

28 See same.

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