California’s DUI laws can be complex and confusing. In this section, our attorneys break down the rules and explain the process.
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Marijuana DUI Test - Is There One? » Marijuana DUI Test - Is There One?
Most jurisdictions currently do not have a specific test for DUI of marijuana that measures the amount of the drug in a person’s system. This is in contrast to DUI cases involving alcohol, where law enforcement can administer a breath test via an alcohol breathalyzer (or conduct a blood test) to determine a driver’s Blood Alcohol Concentration (“BAC”) and potential level of impairment.
Researchers have tried to develop a certain breathalyzer test that can determine marijuana impairment by measuring the amount of THC, or tetrahydrocannabinol, in a person’s system. However, the test is not yet in use.
Rather than rely on one particular test for DUI of marijuana, police usually conduct a DUI investigation to help determine if a motorist is under the influence of cannabis. This investigation may include:
Law enforcement may even call upon a drug recognition expert to help evaluate drivers and identify impaired drivers.
Most jurisdictions do not have a specific test that can:
Researchers have tried to develop certain tests that can determine marijuana impairment by measuring the amount of THC in a person’s system. However, the test is not yet in use.[i]
The test focuses on THC because that is the most prevalent compound in marijuana. A problem with the test, though, is that there are no direct links between THC, a person’s THC impairment, and that person’s marijuana use. That is, a person could have a high level of THC but still be sober.
Note that in Colorado, police do use a marijuana DUI roadside test that focuses on levels of delta-9-THC. In use, drivers can face DUI charges if they have more than five nanograms of delta-9-THC in their system. The test, however, is not accurate and defense lawyers and DUI lawyers can challenge DUI charges that are based upon questionable test results.
Yes. Most jurisdictions use some type of DUI investigation to help determine if a motorist is under the influence of cannabis or driving under the influence of drugs (sometimes referred to as “DUID”).
Police officers can stop a driver if they have probable cause to believe he/she is driving while under the influence.
Once an officer stops a driver, and the motorist appears impaired by drugs, the officer will begin a DUI investigation.
During this type of investigation, the police officer may:
If the driver’s blood alcohol concentration (“BAC”) is below the applicable “legal limit,” but the driver still appears intoxicated, the officer may suspect drug use.
The officer might then call a drug recognition expert (DRE) to come to the scene to evaluate the driver.
The officer may also have the driver submit to a mouth swab test to see if there are drugs in his or her system.
A DRE is a law enforcement officer with special training. The special training helps the officer identify when someone is under the influence of narcotics.
Not all counties have DREs. So a driver suspected of DUID may or may not be subject to a DRE evaluation.
During this evaluation, the expert may:
Once an officer/DRE believes there is probable cause for a DUI arrest, the officer can take the driver into custody.
California law generally follows the above discussion. Police do not use a specific test in DUI of marijuana cases. Rather, law enforcement conducts a DUI investigation to help determine if a motorist is impaired by cannabis.
Police officers may also call upon a DRE to help determine if a driver is guilty of DUID. Note that the DRE program started in the Los Angeles Police Department (LAPD). It is now run by the California Highway Patrol (CHP).
If police officers do arrest a driver for DUID, then the driver can be required to take a blood test if:
After a driver is arrested on suspicion of DUID, his or her blood sample is sent out for a DUI blood toxicology screen. The screen lists the drugs (if any) that were detected in the driver’s system.
The screen typically does not reveal the concentration of drugs detected. It simply indicates whether the driver tested positive or negative for their presence.
Recreational use of marijuana became legal in California on January 1, 2018. Medicinal marijuana use is also legal.
It is still against the law, though, for motorists to operate a vehicle while impaired by marijuana. Vehicle Code 23152f VC is the California statute that makes this act a criminal offense.
[i] See AddictionCenter.com website, “New Breathalyzer Can Now Detect Levels of Marijuana.”
[ii] Vehicle Code 23612 (a)(2)(C) VC.
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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