DUI of Marijuana

After the passage of Proposition 64 in 2016, adult recreational use of marijuana became legal across the State of California. However, residents may still face legal consequences for  cannabis use under certain circumstances, an obvious example of which is a “DUI of marijuana.”

The California Office of Traffic Safety states that marijuana can increase the chance of a crash by up to 35%, highlighting its ability to affect reaction times, coordination, and balance. While DUI legislation and drug testing technology are still adjusting to the decriminalization of marijuana, you can certainly face criminal penalties for driving under the influence of marijuana.

If you’ve been charged with driving under the influence of marijuana, you may be feeling confused and concerned about what this accusation means for your future. You don’t have to navigate your legal options alone—Gressley & Donaldson is here to help. This article will explain everything you need to know about marijuana DUI cases in California, including legal definitions, potential penalties, and common legal defenses.

Ready to protect your future? The first step is choosing the right legal partner. Our dedicated DUI defense attorneys can mount an aggressive defense on your behalf. Contact our law office to schedule your case evaluation.

What Is Driving Under the Influence of Marijuana in California?

Marijuana DUI laws fall under Vehicle Code 23152. The relevant section simply states that it is illegal to drive a vehicle while under the influence of drugs. VC 23152 also states that you cannot be under the combined influence of alcohol and drugs while operating a vehicle. In addition, you may face criminal consequences for operating a vehicle while “addicted” to a drug, although this does not apply to those currently engaged in treatment programs.

While there is no specific mention of marijuana under VC 23152, many of the general legal definitions apply to all forms of DUI, whether they involve alcohol, marijuana, prescription drugs, or any other intoxicating substance.

Defining “Vehicles” Under VC 23152

It is important to understand that the term “vehicle” applies to a wide range of possible things in California. A vehicle does not require motorization to fall under DUI laws, and you can theoretically face a marijuana DUI for operating a bicycle while under the influence. The same logic applies to e-bikes, golf carts, scooters, and various other vehicles.

Defining “Driving” Under VC 23152

In most cases, the vehicle must be in motion to satisfy the “driving” requirement under Vehicle Code 23152. However, there are situations in which defendants in stationary vehicles could face DUI marijuana charges. For example, if you pass out while driving and your vehicle rolls to a stop in the middle of an empty intersection, a law enforcement officer may charge you with a marijuana DUI.

You might also face a marijuana DUI if you pull over and use cannabis while parked, as you are technically still in the process of traveling to your destination. However, if you park your vehicle in your private driveway and use cannabis before getting out, you will likely not face marijuana DUI charges.

Defining “Under the Influence” Under VC 23152

The legal definition of “under the influence” is perhaps the most elusive. Generally speaking, this applies to noticeable marijuana-induced effects on your nervous system, brain, or muscles. These effects must result in some kind of detectable abnormality in mental or physical functioning.

Proving a Marijuana DUI

It may be difficult for police to prove that you are under the influence of marijuana. While the breathalyzer test can effectively detect the presence of your blood alcohol concentration (BAC), no similar test exists for marijuana. Instead, police rely on chemical tests or field sobriety tests (FSTs).

An FST might involve standing on one leg, reciting the alphabet backward, eye tracking, and other techniques—all of which are unreliable in detecting marijuana intoxication. According to the University of California San Diego, these tests are “not accurate enough,” and even the National Institute of Justice admits that FSTs are “not sensitive” to cannabis intoxication.

Police Chemical Tests for Cannabis

Police in California may rely on a range of chemical tests to establish the presence of marijuana and/or marijuana impairment . These might include saliva tests, urine tests, and blood tests.

You may face several different chemical tests, depending on what arresting officers have at their disposal. If they offer more than one testing option, you can choose.

The National Highway Traffic & Safety Administration recommends that persons suspected of driving under the influence of marijuana be evaluated by a drug recognition expert (DRE). The reason NHTSA recommends a DRE evaluation is because the amount of THC in a person’s blood does not indicate whether or not a person is under the influence of marijuana. The federal government has confirmed this in its own research. Therefore, a DRE evaluation is important because it is designed to supposedly allows police officers to determine if a driver is in fact under the influence of a drug, including marijuana. The DRE is a 12-step process, and police officers should follow all 12-steps systematically.

Can I Be Convicted Without a Chemical Test?

In theory, an FST or DRE can lead to a marijuana DUI conviction even in the absence of a chemical test. However, an experienced DUI defense lawyer in California will lean into the lack of supporting evidence presented by the prosecution in this situation.

Other Types of Evidence

Prosecutors may point to the presence of marijuana or cannabis paraphernalia in your vehicle to establish recent or probable consumption. For example, you might have a marijuana pipe sitting on your passenger seat during the arrest. A cloud of smoke may also emanate from the vehicle when you roll down your window.

In some cases, the scent of marijuana could also help support a DUI conviction. However, it is important to note that police cannot search your vehicle without probable cause. Perhaps most notably, Proposition 64 prohibits police officers from searching your vehicle based on the presence of scent alone.

Refusing a Post-Arrest Chemical Test

If you refuse a chemical test in California, your license will be revoked for one year. Note that you may still face a marijuana DUI charge even if you refuse the test. Under certain circumstances, defendants may have the right to refuse blood tests for health reasons. It is important to understand that you only face consequences for refusing a chemical test after you have been arrested.

Police officers are not legally required to provide you with a chemical test unless you specifically request one. Requesting a test may be beneficial, especially if police attempt to attempt to arrest you based solely on the results of an FST.

Penalties for DUI of Marijuana

If you are convicted of marijuana DUI, you face the same penalties as an alcohol-related DUI. Unlike alcohol DUIs, however, your level of intoxication will not affect sentencing.

Misdemeanor Penalties

A first DUI offense with no injuries or aggravating factors can result in up to six months in jail, a fine of up to $1,000, probation, and license suspension. A second and third DUI may result in slightly higher penalties, but they will still be prosecuted as misdemeanors.

Felony Penalties

If you cause an accident resulting in injury to someone other than yourself, you may face a felony marijuana DUI charge. In addition, you may face a felony DUI charge if you have been convicted of three or more prior DUIs. Any felony within the past 10 years could also result in a felony marijuana DUI charge.

Penalties for marijuana DUI felonies include prison time, license suspension, probation, and fines. The penalties for a felony DUI offense are more serious compared to misdemeanor offenses, and they can affect your constitutional rights.

Legal Defenses to Marijuana DUI

Too many people accused of marijuana DUI assume they can’t beat their charges, but they’re wrong. An experienced marijuana DUI lawyer can help you explore a range of possible legal defenses to combat your charges. We will discuss a few of the common defenses to DUI of marijuana below.

You Didn’t Use Marijuana

The most obvious defense strategy is to establish that you did not use marijuana. The unreliable nature of chemical tests and FSTs provides plenty of opportunities to question evidence laid against you.

You Recently Used Marijuana But Were Not Intoxicated at the Time

Marijuana can remain in your system long after consumption. A drug test may detect the presence of cannabis that you smoked months ago—cannabis that could not have possibly affected your driving at the time you were pulled over. Past marijuana use is not sufficient evidence to convict you of driving under the influence of marijuana.

You Used Marijuana, But Your Driving Was Not Impaired

Remember, prosecutors must prove that you were “under the influence” of marijuana while driving. Even if you consumed marijuana, this may not have noticeably affected your driving ability. As long as you operated your vehicle with the same level of caution as a sober person, it may be very difficult to establish that you were intoxicated.

Marijuana DUI FAQs

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Still have questions about your marijuana DUI? The best way to find answers is by speaking with a marijuana defense attorney. In the meantime, read through the answers to a few of our most frequently asked questions.

• How reliable are chemical tests for marijuana?

According to a report by the National Institute of Justice, there is no evidence that a specific THC level leads to impaired driving. On this basis, virtually all chemical tests for marijuana are inherently unreliable in determining intoxication levels. The National Institute of Justice concedes that any laws that rely on marijuana chemical tests are “controversial and difficult to prosecute.”

• Are there per se laws or legal limits for THC in California?

No. While some states, like Washington and Colorado have adopted per se laws or legal limits for THC in blood while driving, California has not done so. This means that even a blood test reveals some amount of THC or marijuana metabolites in your system, that alone is not enough to convict you of driving under the influence of marijuana.

• Is using medical marijuana a defense to DUI of marijuana?

Not a per se defense. California has moved away from the medical marijuana model following the passage of Prop 64. But even if you still use medical marijuana, that does not permit you to drive under the influence of marijuana. However, because California does not have any per se law or legal limit for THC in blood, the fact that you use medical marijuana regularly is relevant to the issue of whether you were in fact impaired by marijuana when you drove.

• Can I refuse to take a DUI chemical test for marijuana?

Due to California’s system of implied consent, refusing a DUI chemical test for marijuana is a criminal offense after a DUI arrest. You can still refuse a test, but your driving license will be revoked by the DMV for one year or more.

• Can a DUI of marijuana on a criminal record be expunged?

In California, you can expunge most DUI offenses when your term of probation ends. That being said, different requirements may apply depending on whether you were convicted of a felony or a misdemeanor under this section.

• How does a marijuana DUI affect professional licenses?

If you drive for a living, you may lose your commercial driver’s license (CDL) after a marijuana DUI conviction. While a new law in California bans employers from testing their workers for cannabis, federal laws and Department of Transportation regulations may still apply to truckers.

Gressley & Donaldson: Top Marijuana DUI Attorneys in California

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While it is true that marijuana intoxication can be challenging to prove, you should still take these criminal charges seriously. The best defense strategy for you depends on the details of your case, and online research cannot provide you with personalized guidance. To approach this situation in a confident, efficient manner, you need to partner with a top-tier criminal defense attorney. Contact Gressely & Donaldson to schedule a consultation today.

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We understand that being accused of a crime is one of the most challenging times of your life. Rely on us to advocate for your rights and to give you the defense you deserve.