Driving Under the Influence of Marijuana

California makes it illegal to drive a vehicle while under the influence of any substance, including marijuana, that impairs the driver’s mental or physical faculties to the extent that the driver is unable to drive or operate a motor vehicle safely. (CA Vehicle Code § 23152(a), and also CA Vehicle Code § 23152(f).

It is also illegal for a person addicted to any drug to drive a vehicle unless that person is in a narcotic treatment program. (CA Vehicle Code § 23152(c).)

Driving Under the Influence of Marijuana or Drugs

Also referred to as DUI drugs a Drug DUI, and also drugged driving, or driving under the influence of marijuana or drugs — or any combination — is a crime. In California, it is an offense that commonly has the same consequences as driving under the influence of alcohol. Vehicle Code section 23152a, the specific law that discusses driving under the influence of drugs or marijuana states:

It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

The legal definition for the phrase under the influence is actually identical to driving under the influence of alcohol:

Affecting the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that any ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.

Where these two offenses differ is in the effects, or consequences. When a suspect is charged with driving under the influence of alcohol, there is the per se offense (having a blood-alcohol concentration, or BAC, at or above .08%; Vehicle Code section 23152b). When charged with driving under the influence of marijuana or driving under the influence of drugs, however, there is no blood-alcohol level (or if it is under .08%) and therefore no per se offense to charge the suspect with.

Because of this, the DMV cannot administratively suspend the suspect’s license for driving under the influence of drugs or marijuana. This suspension is only administered when the suspect refused chemical testing or there is a BAC above .08%. As part of a criminal conviction, however, the license can still be suspended based upon what was pled or proven in court.

There are also a few differences between the two crimes in how chemical testing is accomplished. Where the standard test given to DUI suspects is the breath test, a breath test will not register the presence of marijuana or drugs. Therefore, if the officer suspects the individual was driving under the influence of marijuana or drugs, a blood test will be administered. With suspected drug use before driving, a urine test may be used.

NOTE: The legal use of marijuana is not a defense to driving under the influence of marijuana. A driver may be legally using the drug, such as with a physician’s prescription, but if he is legally impaired by its use, he can be convicted — just as a driver who has legally used alcohol can be convicted of DUI alcohol.

Aside from the blood test, evidence presented by the prosecution for a DUI drugs or DUI marijuana case will also include the comments from the arresting officer (much like in a DUI alcohol case):

• Physical appearance
• Performance with field sobriety tests
• Erratic driving
• Incriminating statements
• Conduct

The indicators for alcohol intoxication are much different than those of marijuana (or other drugs) intoxication, which often poses a problem. The officer making the arrest is often not qualified and/or not trained to identify drug symptoms related to driving. If this is the case, the defense has the power to stop the officer from testifying. However, an increasing number of cases are calling another officer who has this skill to examine the individual in question. Also known as a drug recognition expert, or DRE, this officer is trained specifically to identify the symptoms of numerous drugs, including marijuana. A qualified DRE can testify to the symptoms of drugs and/or marijuana, and the resulting impairments.

An important fact to note: the issue is not the legal status of the drug in use, but the impairment it may cause on the driver. Drugged drivingcases do not always involve dangerous illegal drugs or narcotics. The drugs used by the suspect could be over-the-counter products (Nyquil or Benadryl, for example) or legally prescribed medicines. The attention is on the driver’s mental stability and physical capabilities.

There are many complications in proving the crime of  driving under the influence of drugs . Mostly due to a lack of scientific research, the prosecution for these crimes is still a new development. Science is still unable to:

1. Compare the amount of drugs to the amount of impairment caused by them
2. Identify individual tolerance to particular drugs, including marijuana

Because of these shortages, the prosecution still faces some problems. If a DRE does not examine the suspect, for example, the prosecution will be unable to determine how the observed symptoms are associated with which drug or marijuana. Also, if a blood test is taken, the analysis may be unable to identify which drug was used. If the results do show a particular drug though, it might not be able to prove if enough of the drug or marijuana was taken to mentally and physically impair the driver passed the legal limit.

For a discussion of the research on the effects of marijuana on driving, see “Marijuana and Driving: a research brief from the University of Washington”. For an interesting article in the Washington Post, see “ Stoned Drivers Are a Lot Safer than Drunk Ones, New Federal Data Show“.

In California, a person is guilty of DUI if he or she is (1) driving under the influence of any alcoholic beverage or drug, OR (2) driving while addicted to a drug. Cal. Veh. Code §§ 23152(a),(c), and (f).

(1) Driving under the influence of any alcoholic beverage or drug. § 23152(a).

In California, it is unlawful to drive under the influence of any drug. However, the state must show that the substance impaired the driver, not simply that the driver ingested the drug and then subsequently drove.

NOTE: there is no exception in section for lawful users of medical marijuana.

(2) Driving while you are addicted to a drug. Id. § 23152(c).

This law is based upon the theory that addicts who are experiencing withdraw symptoms are experiencing an altered state of consciousness which makes them unfit to drive. The courts have provided the following guidelines to determine if a person is an addict. The prosecution’s burden is to show;

(1) that the defendant has become ’emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use; (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and; (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”*

* People v. O’Neil, 62 Cal.2d 748, 754, (1965) — Habitual use alone is not sufficient to show addiction. The court has outlined the distinction between habitual user and addict in the following terms: Theaddict constantly takes the drug to avoid the pain of withdrawal illness; the habitual user takes it in anticipation of the euphoria it creates for him. One is compelled by fear to use the drug constantly, while the other is induced to such constant use by the prospect of pleasure.”

Implied Consent

• Any person who drives a motor vehicle on the roads of California is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for either type of DUI. Id. § 23612(a)(1) (A).
• Failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a DUI, and one year license suspension. If the driver is unconscious or dead, consent is assumed and the tests may be administered. Id.
• The driver can choose between either a blood or urine test. However, the driver does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law. Id. § 23612 (a)(2)(C).

Penalties

• First offense – a period of 96 hours to 6 months in jail; fine of $390 to $1000; license suspension of 6 months; offender must complete a DUI program. Id. § 23536(a)-(d).
• Second offense (w/i 10 years) – a period of 90 days to 1 year in jail; fine of $390 to $1000; license suspension for 2 years; offender must complete a DUIU program. Id. §§ 23540 (a)-(c).
• Third offense (w/i 10 years) – a period of 120 days to 1 year in jail; fine of $390 to $1000; license suspension 3 years; ignition interlock device required; offender must complete DUI program. Id. §§ 23546(a)-(b).
• Fourth and subsequent offense (w/i 10 years) – imprisonment for a period of 180 days to 1 year; fine of $390 to $1000; license suspension 4 years; ignition interlock device required; offender must complete DUI program. Id. §§ 23550 (a)-(b).

Other Penalties & Penalty Enhancer

• If the driver causes bodily injury to a person while driving under the influence and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle the imposed penalty will be enhanced. Id. § 23153 (a) (1992).

Sobriety Checkpoints

In California, sobriety checkpoints have been upheld under both the state and federal Constitutions.

• Protocol of sobriety checkpoint stops is to be determined not by standard of criminal investigative stops, but instead by standard applicable to investigative detentions and inspections conducted as part of regulatory scheme in furtherance of administrative purpose. Ingersoll v. Palmer, 743 P.2d 1299 (Cal. 1987).
• California Supreme Court held that advance publicity is not necessary for a checkpoint to be valid.People v. Banks, 863 P.2d 769 (1993).

Case Law

People v. O’Neil, 62 Cal.2d 748 (1965) — Prosecution has the burden to show the defendant had developed an emotional or physical dependence based on the repeated use of a drug and that defendant required larger and larger doses to obtain the desired ‘high.’

California v. De Leon, 2004 Cal. App. Unpub. LEXIS 11549 – It is possible with the assistance of an expert witness to show a driver was experiencing both withdrawal and that he was under the influence at the same time.

A lot has changed over the last few years. Although few people are still supporting the notion that Marijuana is extremely dangerous to a person’s health, there are still a number of concerns raised by some about other potential dangers associated with the use of Marijuana, the most credible being allegations that THC impairs a person’s ability to drive.

This has led to attempts by lawmakers and authorities to find ways to detect Marijuana impairment now more than ever. Unlike Alcohol and other drugs, blood and urine tests can detect Marijuana in a person’s blood stream several weeks after the drug has been consumed, making it especially difficult for a method of detection that proves a person consumed forms of THC within hours of driving.

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So how do authorities test for THC impairment by drivers in California? They start with a field sobriety test. If you fail, that gives them probable cause to arrest you.

Marijuana Field Sobriety Test

If a California officer pulls you over and believes that you are driving under the influence of Marijuana, their first course of action to verify their suspicions will usually be a field sobriety test.

A field sobriety test is a series of physical and mental exercises administered by police during Marijuana DUI investigations to help determine a driver’s level of impairment. California law enforcement officials rely heavily on field sobriety tests when deciding whether or not to arrest a person who is suspected of driving under the influence.

There are different types of field sobriety tests used by California officers, the three “standardized” tests being the “horizontal gaze nystagmus test”, the “walk and turn test”, and the “one-leg stand”, all of which are detailed below.

Horizontal Gaze Nystagmus Test

• The horizontal gaze nystagmus test is usually administered by an officer moving an object, or their own finger, from side to side in front of a person’s face. The reason they do this is to try and detect an involuntary jerking of the eye associated with high levels of intoxication. A person’s eye will reportedly jerk naturally after being strained beyond a 45 degree angle, but if the eye begins to jerk at or before moving 45 degrees, CA police officers can reference this reaction as evidence that a driver is under the influence.
• The National Highway Traffic and Safety Administration (NHTSA) estimates that these tests are 77% reliable.

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Walk and Turn Test

• The walk and turn test splits a suspected Marijuana DUI offender’s attention between physical and mental tasks. Also referred to as the “walk the line test”, the officer provides instructions to the suspected offender and watches to see if any of the following occur:Loss of balance
• Wrong number of steps
• Inability to stay on the line
• Breaks in walking
• Beginning before instructed
• NHTSA estimates that this test is effective 68% of the time.

One Leg Stand Test

• Another divided attention test, during the “one leg stand” an officer will instruct the suspect to raise his or her foot, hold still, count, and look down. An officer may arrest the suspect if any of the following behaviors are observed:
  • Swaying
  • Hopping
  • Putting foot down
• NHTSA estimates that this test is effective 65% of the time.

Blood, Breath, or Urine Test

In California, if an officer has probable cause to believe that you were driving under the influence of Marijuana or any other drug, you have already given your consent to provide a blood, breath, or urine test.

A urine test is not common, but if officers are unable to administer a blood or breath test, you are required to take a urine test. For Marijuana, using blood, breath, or urine tests to determine whether a person is under the influence of THC at the time they were driving is a flawed system, as blood and urine tests are unable to determine whether Marijuana was consumed within the last few hours while breath testing technology does not have the ability to detect Marijuana, as of now.

Saliva Drug Swab Test

Due to the increased number of drivers driving while under the influence of drugs, police officers in Los Angeles are now testing using drug swabs at DUI checkpoints. The test is roughly eight minutes long and uses a person’s saliva to detect THC, crystal meth, methadone, cocaine, and several other prescription medications.

There are conflicting reports as to the accuracy of these tests. The tests work by detecting trace amounts of drugs in California driver’s saliva, but there can be traces of some drugs in your saliva up to three days after consuming them. This leaves plenty of room for doubt in a court room, as it would be nearly impossible to prove without a shadow of a doubt in a court room that a person was under the influence of Marijuana at the time they were driving solely based on a saliva drug swab.

California Marijuana DUI Defense

If you or your loved one were arrested and charged with driving under the influence of Marijuana in California, you may have several options to help defend your innocence. Contact one of our Marijuana DUI defense attorneys today. Having had successful Marijuana DUI case outcomes for the majority of those I have represented, our firm has the experience and history of success that will help you to feel confident about your case moving forward.