Jones Law | DUI & Criminal Defense | Fresno, CA

Marijuana and Driving Under the Influence (DUI)

Driving Under the Influence (DUI) (California Vehicle Code §23152(a)

In California, it is illegal to operate a motor vehicle under the influence of any substance, lawful or not, if the substance used causes physical or mental impairment that makes a person unable to drive safely. Most commonly, California DUI statutes are applied to those driving under the influence of alcohol but not exclusively. The law covers all controlled substances, including marijuana, as well as, contrary to common misconceptions, perfectly lawful substances such as prescription drugs. Medical marijuana users must be aware that they are not exempt from DUI laws by reason of their medical status.

First time DUI offense prosecuted under §23152(a) is a misdemeanor punishable by maximum of 6 months in county jail, a fine between $390 and $1,000, mandatory alcohol program, suspended or restricted license and 3 year probation. If the prosecution involves a person under 21, conviction will result in 1 year license suspension. If the impaired driving results in bodily injury or death, even the first time offense can be prosecuted as a felony punishable by imprisonment in state prison.

Defending Marijuana Related DUI

A skilled lawyer often has an easier task defending marijuana related DUI cases than cases where alcohol is involved. In drunk driving prosecution, the defendant is presumptively guilty when the blood alcohol level is 0.08 percent or more. By contrast, there is no set legal threshold for the THC level detected in the defendant's system, for when a person is presumptively impaired when using marijuana. This lack of a bright line standard makes it more difficult for the prosecution to prove their case. In addition, a knowledgeable attorney can often defend these cases successfully by using experts and various studies showing lack of scientific agreement on when marijuana causes impairment. Scientific literature on the subject contains data that there is no impairment if the ingestion took place more than 2 to 3 hours before driving. Among the best defense tools is the National Highway Traffic Safety Administration of the U.S. Department of Transportation which in 2003 published a cannabis safety study concluding that any effects from using marijuana dissipate quickly after one hour.

A good DUI lawyer will often exploit the lack of sophistication, of prosecution's testing laboratories. Test results often will reveal nothing more than the presence of marijuana metabolites without having differentiated between various kinds. Metabolites are byproducts created after ingesting marijuana. They might or might not be psychoactive and they are not the same as the active drug. The tests might not be able to distinguish between, for example, the highly potent 11-OH-THC metabolite and the non-psychoactive THC-COOH which is marijuana's primary metabolite and which does not cause impairment. Presence of nonactive metabolites does not indicate either impairment or time of use.

Note, that the presence of marijuana would not make your case easier if you also consumed alcohol, even at less than 0.08 percent blood alcohol level necessary for a conviction for alcohol related drunk driving. It has been shown, and the prosecution will most certainly argue, that using both alcohol and marijuana significantly increases potential for impairment.

Refusing Questions and Tests

If pulled over by a law enforcement officer, you have the right to refuse to answer any questions with the exception of having to identify yourself. You may also refuse to take the field sobriety tests. If you refuse, remain respectful. A simple statement that you have been advised to refuse FST's will suffice. The most important thing to know is that you do not have the right to refuse a chemical test after being placed under arrest. Refusal to take a chemical test, after arrest, either breath or blood, will result in the suspension of your driver's license for 1 year or more and can be used against you in the court as evidence of your consciousness of guilt.

Choosing the Chemical Test

If you are arrested for DUI, the officer will ask you to choose between a breath or blood test. If given an option, you should choose a breath test which does not measure THC levels in the blood. However, if the officer suspects you have been using drugs, or for some other reason you are requested to take a blood test, you must comply.

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