California Cannabis DUI Defense
I’m often asked: “Can I be charged with a DUI for driving under the influence of marijuana?” The short answer is yes, but cannabis DUIs differ from alcohol DUIs in several significant ways. This content outlines those differences, and provides a working knowledge of the law related to cannabis DUIs, and advises medical and recreational users to avoid driving while high on Marijuana.
A. What is the Difference Between Alcohol and Marijuana DUIs?
The key distinction between marijuana and alcohol DUIs is that marijuana is fat-soluble, whereas alcohol is water-soluble. So, why does this matter? While alcohol eliminates at a rate of .015-.03% per hour, marijuana can remain in your the system for weeks. Blood results may indicate that Tetrahydrocannabinol (THC) is in the system, but the mere presence of THC in the blood does not necessarily indicate that someone was impaired at the time they drove.
B. Isn’t Cannabis Legal In California Now?
Medicinal and recreational marijuana is legal under California state law. However, cannabis is still an illegal substance as stated by federal law. Therefore, you can theoretically still be prosecuted by the federal government for the possession, consumption, sale, cultivation, and distribution of marijuana in California.
Even if cannabis were legal under federal law, though, you still could be charged with a DUI in the same way one can be charged with DUI due to alcohol consumption despite alcohol being legal. The question becomes: Did the marijuana you consumed impair your ability to drive? Put another way, could you drive with caution of a sober person?
C. How Are Marijuana DUIs Charged?
In California, Vehicle Code (VC) 23152 and 23153 are the two sections charged by prosecutors across the state. VC 23153 is charged when someone gets hurt, and can be explored here.
In the context of an alcohol DUI, prosecutors charge VC 23152(a) and VC 23152(b). VC 23512(b) is the section that everyone is familiar with: you cannot drive with a BAC at or above .08%. People are less familiar with VC 23152(a), so let’s look at it a little more closely. VC 23152(a) states that one cannot drive “under the influence.” To prove that someone was “under the influence” at the time they drove, prosecutors must prove that the individual could not drive with the caution of a sober person due to their alcohol consumption.
So, what does this have to do with Marijuana DUIs? Marijuana DUIs are charged under a different vehicle code section (VC 23152(f)), but this section asks the same question:
Was the person driving “under the influence,” or, put another way, could the individual operate a motor vehicle with the caution of a sober person despite their marijuana consumption?
As you can see, there is no “per se” limit for marijuana that deems someone legally impaired like we have with the .08% or more with alcohol DUIs. As we will see later in this article, this opens the door to defenses that don’t necessarily exist when defending alcohol DUIs.
D. How Marijuana DUIs are Investigated: Drug Recognition Evaluations
Detecting Marijuana DUIs is a different ballgame in comparison to detecting alcohol DUIs. In fact, police officers across the state are being trained to detect marijuana DUIs as we speak. Marijuana intoxication simply does not present in the same way that alcohol intoxication does.
For example, a common field sobriety test that is administered during alcohol DUI investigations is the Horizontal Gaze Nystagmus (HGN) field sobriety test. During this test, the suspect must track an object (usually the officer’s pen or finger) from side to side with their eyes only. The officer checks the suspect for nystagmus, or any involuntary jerking of the eye. If the officer witnesses any involuntary jerking, it is considered to be an indication that the suspect is under the influence of alcohol. However, the HGN test has not been shown to indicate marijuana consumption or impairment. Therefore, law enforcement has had to develop different techniques to detect cannabis impairment.
Unlike alcohol DUI investigations, officers are trained to look for different clues that indicate marijuana consumption:
- Green tongue
- Dilated pupils
- Odor of marijuana
Also, after an arrest, law enforcement completes a secondary investigation at the station that is not performed in the context in an alcohol DUI investigation. For more information on the statistics of how stimulants affect driving ability and Marijuana DUI Charges, please visit the National Institute on Drug Abuse.
E. Detecting Cannabis Intoxication
What’s the difference between methods of detection in Cannabis and Alcohol DUIs? Currently, California’s law enforcement lacks methods of detection in the context of marijuana DUIs. Although there’s no such thing as a standardized breathalyzer for marijuana, companies are researching and developing a marijuana breathalyzer to sell to police departments. Until a legitimate breathalyzer hits the market, law enforcement relies on their own observations and a drug recognition evaluation to decide if someone should be arrested for a marijuana DUI.
Blood or Urine Substance Tests are commonly administered after someone is arrested for a Marijuana DUI. The blood test produces three different levels of THC, whereas urine only confirms the presence of marijuana in the system. As stated above, however, marijuana is fat-soluble and stays in the body for long periods of time. This presents significant problems when attempting to prosecute cannabis DUIs: How can it be said that someone is “under the influence” at a certain level of THC concentration in the blood when we have no “per se” limitations under the law? What if the person has been using marijuana for years and has developed a tolerance? Should we treat that person the same way we treat someone who just smoked marijuana for the first time? These types of questions give district attorneys across California headaches when prosecuting marijuana DUIs.
F. Administrative DMV Action & Penalties for Marijuana DUIs
Currently, DMV does not take any administrative action on one’s license if no alcohol is involved in an alleged DUI. However, if there is a mixture of drugs and alcohol, the DMV may take action on your license.
G. Hiring an Attorney for a Cannabis DUI
Hire a California Marijuana DUI Attorney who has experience dealing with Marijuana DUIs, specifically. There are similarities between alcohol and Cannabis DUIs, but in large part, they’re two different sub-categories within DUI Law. It’s critical that your California marijuana DUI lawyer is experienced in the investigation and prosecution of marijuana DUIs in order to put forth the strongest defense possible.