DRIVING UNDER THE INFLUENCE OF MARIJUANA

In California Driving Under the Influence of Marijuana is criminalized by Vehicle Code section 23152(e) which states: “It is a criminal offense for the driver of a vehicle who is under the influence of marijuana to drive a vehicle."

What is defined as driving under the influence of Marijuana DUI pursuant to Vehicle Code section  23152(e) is pretty much the same as what is defined pursuant to driving under the influence of alcohol under California Vehicle Code 23152(a) VC.

ALERT: Be advised that driving under the influence of marijuana is still and always will be a crime in California. Despite California voters passing Proposition 64 in November 2016, which legalizes the use of recreational marijuana in California, driving under the influence of any drug inclusing marijuana is a crime punishable by jail and loss of your driving privilege. As you will read below, law enforcement officer’s will no doubt begin enforcing California's marijuana DUI laws more seriously, since "baked or stoned driving" will be more prevalent after the passage of Proposition 64. Police officer’s will be stopping vehicles for even the most minor traffic violations then looking or smelling for objective signs of marijuana use.

Driving Under the Influence (DUI) of Marijuana Penalties of Probation

The probationary terms of a first time DUI marijuana conviction are pretty much the same as California first time DUI Alcohol consequences which are:

  • Stay out of trouble probation from anywhere etween 3 to 5 years;
  • Up to 6 months in county jail;
  • A base fine of between $390.00 and $1,000.00 with penalties and assessments totals between $1,900.00 to $3,500.00 and;
  • Suspension of your driving privilege for 30 day to 5 months.

Priorability: What is important to note is that Marijuana DUI’s are priorable meaning that a second offense conviction for driving under the influence of marijuana within 10 years of a conviction for DUI marijuana/drugs or DUI alcohol makes the 2nd or subsequent offense even more burdensome including mandatory jail.

Despite being Charged with DUI Marijuana there are defenses to the charge

The below references just a handful of legal defenses for fighting DUI Marijuana charges in violation of California Vehicle Code 23152(e):

  • The accused was not operating a motor vehicle at the time of the alleged offense;
  • The accused didn't consume any marijuana;
  • The amount of marijuana measured by the chemical test showed an insufficient amount of delta-9-tetrahydrocannabinol (“THC”)  to impair one’s driving;
  • The effects of the marijuana consumed dissipated by the time the arrestee was driving;

The criminal defense attorneys at Los Angeles DUI Lawyer have not and will not ever consist of former prosecutors and cops. I chose sides a long time ago and no cop or prosecutor will ever work for the Los Angeles DUI Lawyer. We are not hypocrites who once argued to a jury to send the accused to rot away in prison or County Jail and then now advertises for you to hire them because they had a change of heart and now desire your money. 

Please see the following Relevant DUI Marijuana topics to better understand a violation of California Vehicle Code 23152(e) Marijuana DUI:

  1. DUI Marijuana Defined: What is the Legal Definition of California Vehicle Code 23152(e) DUI Marijuana?

The legal definition of California Vehicle Code 23152(e) DUI Marijuana consists of the following points that the prosecutor must prove beyond a reasonable doubt:

  • Driving of a vehicle (any vehicle - even a bicycle, scooter or moped!);
  • while under the influence of marijuana.
  1. What is the legal definition of “Driving” a motor vehicle?

California Criminal Jury Instructions state in Cal Crim 2241 that a “Driver” is a person who drives or is in actual physical control of a vehicle. Furthermore, the Cal Crim 2241 Instruction states that a person is legally driving a vehicle when s/he intentionally causes it to move by exercising actual physical control over it. As such, all the prosecution needs to prove is that the accused caused the vehicle to move even slightly.

  • Keep in mind that even if a law enforcement officer didn't see you actually driving a vehicle, they can still arrest you for Marijuana DUI based on circumstantial evidence of driving. See below.

Example: Officer White of the L.A.P.D. comes upon a single vehicle traffic accident at the corner of Van Ness and Imperial Highway. Beto, the driver of the vehicle is outside the car which crashed into a light pole talking to his old lady Tina. Tina and Beto know what time it is so neither of them tell the officer who was driving. Shoot, they don’t even tell the LAPD officer their names and they both invoke their right to remain silent. But this officer notices that Beto smells like weed, has glassy eyes and he has a pro-Prop 215 T shirt on. The officer “detains” both Tina and Beto at gunpoint because that’s what cops do while the cop waits for backup. As soon as back up arrives which consists of about 18 patrol cars with cops riding two or three deep, officer White begins his DUI investigation by verifying who the crashed vehicle was registered to, he measures how far back the seat was to determine if Beto or his shorter old lady Tina was driving. Officer White gets statements of witnesses who might have seen the collision, he interrogates Tina and Beto separately telling them lies that two people saw that Beto was driving even though no one ratted cuz folks in that area of L.A. don’t care for the police. And then Beto, cuz he’s baked out of his mind, makes the mistake of submitting to field sobriety tests where Officer White will later write in his report that Beto was falling all over and unable to keep his balance. So now, even though Officer White didn’t personally see who was driving the vehicle that crashed, he has enough circumstantial evidence and probable cause to arrest Beto for California Driving Under the Influence of Marijuana. 

  1. What does “Under the influence” of marijuana mean?

One is considered to be “under the influence” of marijuana when:

  • due to consuming any amount of marijuana
  • you are so impaired that you can no longer drive a vehicle with the caution of a sober person 
  1. What does the Prosecutor need to prove in order to show that one is Guilty of California Vehicle Code section 23152(e) DUI Marijuana?

Chemical Tests - Blood or Urine

As opposed to alcohol, there does not exist a specific nanogram of THC  - delta-9-tetrahydrocannabinol (“THC”) in the blood that can be used to establish impairment for DUI marijuana. Positive test results showing whether one is DUI marijuana are unreliable. They simply show whether or not there is some delta-9-tetrahydrocannabinol (“THC”)  in your system. What they cannot show is how much weed one consumed, or how recently one consumed it.

Furthermore, the DUI experts are in disagreement as to how much THC  - delta-9-tetrahydrocannabinol (“THC”)  in one’s system is needed to impair one's ability to drive in violation of California Vehicle Code section 23152(e) marijuana DUI.

One can be investigated for DUI, not submit to a chemical test such as a urine or blood test, and still be charged with and suffer a conviction for DUI marijuana. These chemical tests for urine or blood (or breath in alcohol cases) are just one puzzle piece of evidence the State can use to show you drove a motor vehicle stoned. And the same way a driver who is being investigated for DUI Alcohol who refuses to take a breath or blood test will thereafter be charged with DUI with the added allegation of a refusal making the crime more serious, if you refuse to submit to a chemical test while being investigated for Marijuana DUI you can still be charged under California Vehicle Code 23152(e) DUI Marijuana.

Above and in addition to blood or urine test results, evidence of driving under the influence of the herb may also include:

  • The presence of any weed, rolling papers, pipes, roach clips, bowls, water pipes, bongs or other smoking paraphernalia in your car or on your person
  • The manner in which you were driving;
  • Any admissions to the police who were investigating you;
  • The way you looked such as your eyes, face, manner of dress;

and

  • Your abilities on the Standardized Field Sobriety Tests ;

The Field Sobriety Tests used in DUI ALCOHOL arrests are one way the police try to determine if you are Driving Under the Influence of Marijuana. Now keep in mind that Field Sobriety Tests were designed to show Alcohol Impairment. There has never been a Field Sobriety Test that has been studied and later implemented in a police investigation of anyone under the influence of Marijuana.

All of the Field Sobriety Test performance factors will be introduced through testimony from the DUI arresting officer.  If drug use is suspected including marijuana, the investigating officer may also call a “Drug Recognition Expert” (DRE) to the scene.

Some things that the officer who pulled you over might look for in deciding whether to arrest someone for driving under the influence of marijuana are:

  • any smell of marijuana coming from you or the car;
  • slow or slurred speech and reaction time;
  • glassy, red and watery eyes;
  • unequal pupil size;
  • and believe it or not ... a Green Tongue (which is scientifically, biologically and humanly impossible) 
  1. Must one submit to a Blood or Urine Test under California Vehicle Code section 23152(e) DUI Marijuana?

The answer is yes if you were issued a driver’s license in California because you gave your implied consent to be tested for alcohol and drugs if anytime in the future you are arrested for DUI drugs or alcohol.

Here at The Law Offices of Ed Blum your Vehicle Code section 23152(e) DUI Marijuana case will be diligently fought and the stop of your vehicle, detention and subsequent arrest and the test results will be challenged. If the stop of your vehicle, detention, subsequent arrest, and search of your person (test results) is proved to be unconstitutional, the test results will be discarded even if they show that marijuana was consumed.

  1. If arrested for Marijuana DUI, what chemical tests must one submit to?

After you have been pulled over and the cop smells the odor of burnt marijuana or you voluntarily admit to smoking marijuana recently, you will likely be asked to submit to a blood or breath test by the investigating officer.

If you choose a breath test and your alcohol level is low or zero the officer may still demand a blood test if the cop believes from a totality of the circumstances that a blood test will show you are DUI marijuana.

If you cannot submit to a blood test due to medical concerns, or if a blood test is unavailable due to a the shortage of a phlebotomist or nurse, then a urine test will be demanded in place of a blood test. 

  1. May one refuse to take a breath, blood or urine test for Marijuana DUI?

Unless you are on current active probation for DUI or some other crime which requires you to submit to a chemical test, you may legally decline to submit to the road side hand held breath testing device. In addition, the officer may ask you to perform field sobriety tests. Keep this next bit of information in mind, as long as you are not already on DUI or criminal probation, you may legally decline to take these tests. However, once arrested for DUI then it is required that you submit to a chemical test. You may still decline the Field Sobriety Tests. So, once the officer places you under arrest, a refusal to submit to a DUI blood breath or urine test will result in additional consequences above those already in place for Vehicle Code section 23152(e) marijuana DUI.

For a 1st time marijuana DUI, these include but are not limited to:

  • 48 additional hours in jail,
  • a 1-year drivers license suspension, and
  • 9-months DUI program (instead of the usual 3-month program) 
  1. Are Chemical Tests for DUI Marijuana even reliable?

Below are the major problem areas with blood or urine testing for marijuana DUI:

  • The chemical blood or urine tests don’t indicate when the consumption of marijuana took place;
  • The chemical blood or urine tests don’t show how much marijuana was consumed; AND
  • The experts cannot agree as to how much marijuana in one’s system equals driving stoned.
  1. THC  - delta-9-tetrahydrocannabinol (“THC”)

Delta-9-tetrahydrocannabinol (“THC”) is the main psychoactive ingredient in marijuana. It alters one’s perception, motor skills, recall and awareness. THC is what makes marijuana users feel “baked.”

Immediately after marijuana is consumed results in the highest blood concentration of THC with the effects of smoking marijuana lasting one to two hours.

As such, blood and urine tests for the presence of delta-9-tetrahydrocannabinol (“THC”)

can be troublesome for a prosecutor who is trying to prove to a jury that someone has violated Vehicle Code 23152(e) Marijuana DUI

  1. Marijuana Blood Testing

Blood tests can produce many false positives for California Vehicle Code section 23152(e) DUI marijuana.

Delta-9-tetrahydrocannabinol (THC) is fat-soluble which means it gets stored in the body's fatty tissues. As a result, it can be detected by blood or urine tests for DUI marijuana long after someone who has used it no longer feels the effects of the marijuana.

For people who occasionally use marijuana, delta-9-tetrahydrocannabinol (THC) is detectible in the blood for up to 12 hours after use.  In people who frequently use marijuana, it can reveal itself in blood or urine tests up to 48 hours after last consumption. As a result, “false positives” for marijuana impairment in DUI marijuana blood tests are common, even when the driver has not consumed marijuana for days.

Example: Jimmy Spliff smokes marijuana ten or twelve times a week and has been for years. One day he is driving with his lights out after dark and is pulled over by Officer Square. The officer smells weed on Jimmy’s beard and clothes and arrests him for VC 23152(e) DUI marijuana.

Interestingly, this happens on a day when Jimmy has not smoked any pot and isn't feelong any effects of weed consumption. But because Jimmy is a chronic user, his blood test shows the presence of delta-9-tetrahydrocannabinol (THC).

  1. Urine testing

There exists more problems with Urine tests for DUI marijuana than blood testing for marijuana.

The least reliable tests to determine if one is driving under the influence of marijuana is a urine chemical test. Such testing does not directly test for the presence of THC, but instead it tests for inactive metabolites, such as THC carboxylic acid (THC-COOH). These inactive metabolites can be detected in urine days or even weeks after the arrestee for DUI marijuana has consumed marijuana. As such, any impairing effects due to marijuana consumption will have dissipated long before the accused has even thought about driving his or her car but the inactive metabolites will still be detected by a urine test, in some cases for as long as up to one month in habitual users.

A positive urine test does not indicate that one was DUI marijuana since these inactive metabolites do not themselves cause impairment for driving purposes. The positive test simply  indicates that marijuana  has been consumed within the last couple of days, weeks or even months.

Example: Thelma suffers from glaucoma, migraine headaches and she suffers from hemophilia.  She smokes high cannibidoil (CBD)/low delta-9-tetrahydrocannabinol (THC)  marijuana morning before work and at night when she gets home from work to help her manage her headache pain and to literally see straight. She rarely smokes on weekends.

One Sunday evening Thelma is driving to her grocery store and she swerves into oncoming traffic because she was changing the radio station in her 1974 Ford Econoline Panel Van. A CHP officer sees this and he pulls Thelma over at gun point of course. When the CHP officer pulls her over, he smells marijuana on Thelma's clothes and dreadlocks.  A breathalyzer test reads negative for alcohol, so the cop orders Thelma to submit to a chemical blood test to see if she is DUI marijuana.

Because Thelma is a hemophiliac, she is allowed to take a urine test. Even though Thelma hasn't smoked in two days, she tests positive for marijuana in her system and she is arrested, handcuffed and charged with DUI marijuana in violation of Vehicle Code 23152(e).

  1. Oral saliva tests

Certain California counties have begun using oral swabs to detect if someone has been driving under the influence of marijuana in violation of Vehicle Code section 23152(e).

Oral saliva sampling is easy to administer and non-invasive, and that it can possibly narrow down the time of use to several hours. As of the date of this article, the admissibility of oral saliva tests for DUI marijuana in violation of VC 23152(e) cases has not yet been decided by a California court of law.

Los Angeles, Bakersfield, Sacramento and some cities in Orange County have begun using these oral saliva tests on a trial basis. Presently an oral saliva test is voluntary like a hand held Preliminary Breath test Breathalyzer or a field sobriety test.

  1. Is it possible for Marijuana use to Alter one’s Driving Skills?

For those reading these lines please understand that studies on marijuana use and driving impairment are contradictory. Some articles regarding this issue suggest that marijuana use increases the risk of an automobile accident, others suggest that the use of marijuana prior to driving shows that the driver is more alert and less prone to a car accident.

The National Highway Traffic Safety Administration (NHTSA) recommends NOT jumping to conclusions regarding impairment based solely on delta-9-tetrahydrocannabinol (THC) concentration in the blood.

Moreover, there are studies that show driving after smoking weed merely doubles your risk of getting into an automobile wreck while studies show in contrast that driving drunk is 20 times more likely the cause of an accident in new drivers. 

Drivers who have smoked marijuana tend to be more aware of their high than drunk drivers of being impaired due to alcohol consumption. As a result, those who have ingested marijuana tend to drive more slowly than normal resulting in far fewer accidents as opposed to those driving after too many drinks. 

Example: Johnny Loco was racing his 2017 GT Mustang like a bat out of hell around the 405 freeway South Bay curve at 125 mph after he consumed a 12 pack with Jack Daniel’s chasers at the game. Cheech Marin who was cruising his 1964 Chevrolet Impala down the Sunset Strip at 15 mph below the posted speed limit. Both were pulled over and both were arrested for DUI after testing positive for alcohol and marijuana respectively. 

In summary, even though the law penalizes DUI marijuana and DUI alcohol the same, the experts agree that this is not an equitable distribution of the California DUI laws which are already viewed as Draconian.

  1. Are there Probationary terms for California VC 23152(e) Marijuana DUI ?

DMV - A 5-month suspension of your driver's license is the standard penalty for a first time conviction of DUI Marijuana VC 23152(e). For cases without a serious accident, DUI marijuana under California Vehicle Code 23152(e)  is routinely charged as a California misdemeanor.  The penalties are the same as for DUI alcohol.

COURT - For a first offense, the consequences of a DUI marijuana conviction can include:

  •  Informal stay out of trouble probation for three to five years;
  • A maximum of six months in county jail;
  • A maximum fine of up to two thousand dollars ($2,000.00) and
  • Suspension of your driver's license for five months.

For second or third offenses, these penalties increase but still remain misdemeanor penalties unless someone was injured which could result in a felony filing of a violation of Vehicle Code section 23152(e) Marijuana DUI:

For cases filed as a felony the following is only a partial list of what could be ADDITIONALLY ordered as a condition of probation providing probation is recommended:

  • State prison/jail sentence;
  • A driver's license one year suspension;

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Los Angeles DUI Defense Attorney Jeff Voll

After serving his country for 6 years as an infantry sergeant, Edward Blum left military service and went to law school. Upon graduating he took up the mantle of defending the constitution one person accused of a crime at a time. For over 20 years Edward Blum has fought and tried misdemeanor and felony criminal cases in Southern California. Edward Blum has tried hudnreds of cases from possession of drugs to murder. When he's not standing up to prosecutors, Edward Blum lectures on each citizens rights and how to interact with cops (Hint: Don't).

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