DUI of Marijuana, Possession of Marijuana and Driving While in Possession of Marijuana

Posted by Neil Shouse | Feb 08, 2011 | 0 Comments

Let's say that the cops pull you over and see that you have a half-smoked joint on the floor board of your car. They assume you've been smoking and conduct an investigation to see if you've been driving under the influence of marijuana. Even if they conclude that you were not, they will probably still cite you for violating California's possession of marijuana law. This, however, is not the appropriate charge.

Possession of marijuana is a separate offense from driving while in possession of marijuana. Both are infractions, punishable by a maximum $100 fine. However, possession of marijuana is an offense that qualifies for drug diversion, driving while in possession of marijuana is not. And if you are convicted of driving under the influence of marijuana and possession of marijuana, the DUI charge will disqualify you from participating in drug diversion as well.

So depending on the circumstances…and on your criminal history…you and your California marijuana defense attorney may try to negotiate a plea to the driving possession charge which will simply go down on your record as an infraction. Otherwise, it may make sense to try to get the simple possession charge so that you can participate in diversion and ultimately have the charge dismissed. And if you are also arrested for the DUI…and can fight that charge, leaving only the possession charge…you and your attorney will have to decide which charge will benefit you more and then try to negotiate a plea bargain for the desired charge (unless, of course, it is the charge that was already filed against you).

If this sounds confusing…and even if it doesn't…make sure you consult with a California marijuana defense attorney before going to court to discuss these and any other options. (Also see our article about the difference between heroin possession and being under the influence of heroin in California law.)

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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