If you or a loved one have recently been arrested and charged with driving under the influence of marijuana, your license is in jeopardy, and other serious consequences can also follow upon a conviction. Marijuana DUI is now a very common charge in Los Angeles and throughout the state of California, and yet, many DUI lawyers still don't have the expertise to handle these cases properly.
At Los Angeles DUI Attorney, we understand the peculiar legal issues involved in defending marijuana DUI cases and are fully familiar with the courtroom dynamics and processes for this practice area in local L.A. Area courts.
Don't risk a DMV hearing or court battle for marijuana DUI without first availing yourself of top legal help from Los Angeles DUI Lawyer. You can contact us anytime 24/7/365 by calling 424-285-5400. We are here to assist you and will waste no time getting started on your case.
How Does California Define "Marijuana DUI?"
California Vehicle Code Section 23152e specifies that operating a motor vehicle while under the influence of the drug marijuana is illegal in the state of California, provided that the marijuana has impaired your driving abilities to the degree that you cannot drive "with the caution ordinarily expected of a sober person" in the same driving situation.
Note that other portion of VC 23152 criminalize driving under the influence of alcohol and/or or any intoxicating drug, regardless of whether that drug be illegal, prescription, or over the counter.
Also note that, despite Prop 64 legalizing the use of marijuana for "recreational purposes," this does not legalize driving a vehicle while under the influence of this drug. Nor does it mean that California police are more relaxed about "stoned driving." If anything, Prop 64 has made law enforcement more tense about DUI marijuana.
The Elements of the Crime
The elements of the crime of DUI marijuana are rather simple: first, that you were operating a motor vehicle; and second, that you were at that time under the influence of the drug marijuana.
The arresting officer must have actually seen you operating the vehicle, not simply seen you in the vehicle by the side of the road or at home with a car parked in your driveway with a "hot engine." Any arrest where the officer did not witness your driving the vehicle would be illegal and could lead to a dismissal of the charges against you.
"Under the influence" of marijuana means that your mental and/or physical ability to safely operate the vehicle was diminished by the presence of marijuana in your system. A drug test, observation of your personal appearance, and observation of how you drove the vehicle (by the arresting officer or another witness) will constitute the main evidence to this effect.
Can Marijuana Truly Affect Your Driving?
The prosecution will insist there is no doubt about marijuana seriously impairing drivers' ability to operate a vehicle, but actually, studies on this question have had somewhat mixed results. It is true that marijuana has often been found to increase the risks of an accident, but by how much and based on what level of THC in the blood stream varies greatly.
Even the NHTSA admits it is "difficult to prove" DUI marijuana based on THC levels. And the odds of having an accident while driving drunk are much greater than the odds when driving after using marijuana.
When marijuana does affect driving, mostly it causes drivers to slow down because they tend to realize their impairment and drive more cautiously. With drunk driving, the tendency is to speed up since consciousness of driving impairment is, to a large degree, lost. Despite these differences, however, marijuana DUI is punished at the same degree of severity as DUI alcohol.
What to Expect From the Prosecution
Like other forms of "drugged driving," DUI marijuana has not set amount of THC that must be found in your system to gain a conviction (which would correspond to the .08% BAC standard). In theory, any THC at all, however small, could be grounds for a DUI marijuana charge.
Also at issue, however, is that THC tests are not nearly as reliable as BAC tests (which themselves are not 100% reliable). The tests are also more limited since they do not tell how much marijuana you used nor when you used it. They simply test "positive" or "negative" for THC in your blood stream.
Also understand that the prosecution will not rely solely on the blood test. They will also use testimony and police reports indicating such "signs of marijuana use" as the following:
- An erratic manner of driving.
- Admission of marijuana use to the arresting officer.
- Failure to pass the FSTs.
- Police discovery of marijuana or marijuana-related paraphernalia in your vehicle or on your person.
- Evidence of your being a marijuana addict.
- Testimony of police and/or a DRE (drug recognition expert) of your having red eyes, increased heart rate and respiration, diminished reaction time, or other signs of marijuana use.
- Testimony of the police officer/DRE smelling marijuana on your clothes, in your breath, or in your vehicle at the time of
The Implied Consent Rule
In California, all drivers are considered to give their "implied consent," at the time of receiving their driver's license, to submit to all BAC and other drug tests when stopped for DUI by authorized police. You cannot escape a DUI marijuana conviction by refusing the chemical test both because other evidences than just test results will be used against you and because refusing the chemical test constitutes yet an additional crime.
Note that the arresting officer can give you the option of taking a breath or a blood test, but that if you pass the breath test, the officer can then require you to take a blood test if he/she believes you show signs of intoxication. This is typically what will happen when the officer suspects you are under the influence of some drug other than alcohol. The blood test will establish which drug, if any, is in your system but not the quantity.
If you cannot safely take a blood test due to a medical condition, you can opt for a urine test instead.
Note that, technically, you can refuse to submit to all chemical tests until you are under arrest. The officer must inform you of the moment he places you under arrest and inform you of your Miranda Rights. Any refusal to take a drug test at that point is illegal and punishable by two additional days of jail time, a full year license suspension (instead of the 6-month minimum with possibility of a restricted license), and a nine instead of three month long DUI class.
Problems with THC Chemical Tests
THC, or "tetra-hydro-cannabinol," is the most significant potentially intoxicating ingredient in marijuana. It is THC that inhibits certain motor movements and memory skills in marijuana users, gives the sensation of feeling high, and can lead to addiction.
It makes sense, then, that drug tests be designed to detect THC. But, as mentioned above, these tests are very rudimentary at present. They do not tell the quantity of THC, the timing of drug use, nor the degree of intoxication. They only indicate if at least some THC is present or not.
This is problematic because THC normally has its peak effects within the first two hours of smoking pot, and after five hours or less, most people are functioning normally again (even if a small amount of THC is still detectable in their system). If marijuana is ingested, the effect of the THC will take longer to kick in but not be as extreme.
Marijuana blood tests may find THC in your blood stream as long as twelve hours after smoking/ingesting marijuana. If an individual habitually uses marijuana, blood tests can find THC as long as two days after the last time it was consumed.
Marijuana urine tests actually check not for THC but for related "metabolites" that indicate THC was in your system previously. But it possible to detect this as late as four weeks after consumption.
Finally, oral swab tests are used in L.A. and certain other localities to better determine the timing of marijuana use. However, these tests are technically voluntary at present and have not been ruled admissible as evidence in California courts.
A conviction for DUI marijuana in California will bring identical penalties to a conviction for driving under the influence of alcohol or an intoxicating drug other than marijuana. The circumstances of the case, your past criminal record, especially any previous DUI convictions, and the skill of your defense attorney will all be factors in what specific sentencing elements you are likely to receive if convicted.
Most DUI charges, including for marijuana, are misdemeanors. DUI with serious injury and a 4th DUI, however, will typically be charged as felonies.
For a first-time DUI offense, marijuana DUI is punishable by:
- 3 to 5 years of informal probation.
- 4 days to 6 months in county jail.
- A fine of from $390 to $1,000.
- A 6 to 10 month license suspension, with possibility of getting a restricted license after the first 30 days.
- A 3 to 9 month DUI class.
A second marijuana DUI offense within 10 years of the first DUI (of any kind) can be punished as follows:
- 4 days to 12 months in jail.
- A fine of $390 to $1,000.
- A 2-year license suspension (restricted license possible after first year).
- 18 to 30 months of DUI school.
A third-offense marijuana DUI is punishable by:
- 120 days to 12 months of jail time.
- A fine of $390 to $1,000.
- A 3-year license suspension (restricted license possible after 18 months).
- A 30-month DUI school.
A fourth-offense (felony) DUI can be punished by:
- 16 months to 3 years in state prison.
- A fine of $390 to $1,000.
- A 4-year license suspension.
- 18 to 30 months in DUI school.
A marijuana DUI with injury (misdemeanor level) is punishable by:
- 5 days to 12 months in county jail.
- A $390 to $5,000 fine, plus full restitution.
- A 1 to 3 year license suspension.
- A 3 to 30 month DUI class.
A marijuana DUI with injury (felony level) is punishable by:
- 16 months to 16 years in state prison.
- A $1,015 to $5,000 fine, plus full restitution.
- A 5-year license suspension.
- An 18 to 30 month long DUI class.
Common Defenses Against DUI Marijuana
At Los Angeles DUI Attorney, we use a large number of different defense strategies to fight charges of DUI marijuana. We know how to apply the best possible defense to each case we handle and how to use multiple defenses simultaneously where applicable.
Some of the common defenses we use against DUI marijuana are the same as against DUI alcohol, while others differ. Here are the most common defenses we use:
- Your Rights Were Violated: If you were stopped or arrested without probable cause, arrested without being read your Miranda Rights, or were subject to illegal searches and seizures, we can likely get your DUI case dismissed.
- Title 17 Violations: If police did not administer all tests, properly maintain testing equipment, and safely store blood samples in accordance with California Title 17 protocols, we can also likely get your case dismissed.
- False Test Results: Although THC is unique enough to make false positives rare, it does still sometimes happen. For example, those on certain drugs for gastro-intestinal reflux disease may falsely test positive. And there are also certain other drugs that can give a false reading.
- You Were Not DUI: Although you may have used marijuana and rightly tested positive for THC, it is possible you used it long before getting behind the wheel and were not driving under its influence. Blood and urine tests used by police, however, would not reveal this fact and cannot prove, in themselves, whether or not your driving abilities were inhibited. Also remember that there is no consensus, as yet, on how high THC levels would have to be (even if quantity were detectable) to impair one's ability to drive.
Two "Non-defenses" Against DUI Marijuana
Note that it is not a defense against VC 23152e, DUI marijuana, to say that you were using marijuana legally, whether for medicinal or recreational purposes.
Remember that even legal drugs, including legal use of marijuana, can still potentially impair one's driving. Drivers who must or who choose to use marijuana and other legal drugs must schedule to use them in a way that will not endanger other drivers and pedestrians, or have someone else act as a designated driver when necessary.
Second, note that it is not a valid defense to say that, though your driving was partly impaired by marijuana use, something else (exhaustion or a prescription drug, for example) was the main cause. If marijuana contributed at all to your impairment, it is a violation of 23152e.
Finally, we can add that, if the prosecution fails to prove you were DUI marijuana but can show you were addicted to marijuana while driving, they can convict you under VC 23152c, which is punished the same as DUI marijuana.
Illegal Possession of Marijuana
Those convicted of DUI marijuana are often charged with illegal possession as well if marijuana was found in their vehicle or on their person by the arresting officer. It could also be that, though a DUI marijuana conviction cannot be obtained, the prosecutor will try to get a conviction on this charge.
If a large amount of marijuana is discovered on your person or in your vehicle; or, if you are under the age of 21 and any usable quantity of marijuana is found; you can be convicted of illegal possession. You can only possess about an ounce of marijuana legally.
Possession of more than 28.5 grams of marijuana is punishable by 6 months in jail and a maximum $500 fine.
Possession of any marijuana whatsoever while under 21 is a mere infraction, punishable by community service, counseling, and a $100 fine. If you are under 18, the fine will not apply.