California law states under Vehicle Code section 23152(f) that “It is unlawful for a person who is under the influence of any drug to drive a vehicle.” Though seemingly a straightforward statute, California’s legalization of cannabis for medical and recreational purposes in 2016 has led to increased uncertainty over the legality, determination, and prosecution of marijuana DUIs. 

The DUI defense lawyers at Confianza Legal have the expertise to break down the intricacies of cannabis and intoxicated driving. If you have been accused of a marijuana DUI in California, read on for more information and how we can help you resolve the charges against you. 

Is Driving Under The Influence Of Cannabis Illegal In California?

In California, it is illegal to drive a vehicle under the influence of alcohol or any drug, including any prescription drugs. For the purposes of this definition, “vehicle” constitutes not only cars and trucks, but also bicycles, motorized scooters, and even horses. With the exception of bicycles, all modes of transportation not operated by “human power” can be subject to the law of DUI.

The definition of “driving” under California law constitutes the operation of a vehicle. In order to arrest you, law enforcement must witness you driving the vehicle while intoxicated or have reason to believe that you have operated the vehicle while intoxicated. 

If you crash your car into a guardrail, for example, you can still be subject to a DUI even if no one witnessed you driving. On the other hand, an officer cannot arrest you for sitting in your car with the vehicle running, as these actions do not constitute driving. 

The definition of “under the influence” is the most difficult part of the law to pin down. Unlike the restriction on driving under the influence of alcohol, which prohibits driving with blood alcohol content (BAC) higher than .08, California has no “per se” limit on what constitutes intoxication under the influence of marijuana. States such as Colorado and Washington, have a legal limit of 5 nanograms of delta-9-tetrahydrocannabinol (THC, the chief psychoactive component of marijuana) per liter of blood. Since California does not have a similar law, it’s more difficult to define what it means to drive “under the influence” of THC. Simply having used marijuana does not necessarily imply intoxication or impairment behind the wheel of a vehicle. 

To further complicate these legal ordinances, Vehicle Code section 23152(c) declares that it is unlawful for a person addicted to any drug to operate a vehicle at any time. “Addiction” in the context of this statute is defined as the use of a drug for avoiding withdrawal symptoms rather than for euphoric sensation, which does not typically apply to marijuana usage, but it’s important to keep in mind as a prosecutor might attempt to prove you are addicted to cannabis in order to convict you for a DUI. 

What Are The Penalties For Marijuana DUIs in California?

Marijuana DUIs in California carry penalties similar to those for driving under the influence of alcohol. DUIs are considered “wobblers”–offenses that can be considered misdemeanors or felonies based on the specifics of the case. Most DUIs count as misdemeanors with a few exceptions:

  1. A record of three or more DUIs within the past ten years
  2. A felony DUI within the past ten years
  3. An accident in which someone was killed or injured

A misdemeanor DUI carries penalties including fines up $5000, jail time between six months and a year, driver’s license revocation up to three years, probation time up to five years, driver’s school up to 30 months, and non-court penalties such as loss of employment or higher auto insurance rates.

Felony DUIs carry sentences of up to 16 years in prison and five years of license revocation. In order to avoid or reduce these penalties, it’s important to retain an aggressive DUI lawyer as soon as possible. 

How Does Law Enforcement Test For Marijuana Intoxication?

As of right now, there are few reliable ways for law enforcement to test for marijuana impairment. If you’re involved in a traffic stop because of a suspicious driving pattern such as weaving between lanes or driving on the wrong side of the road, you will likely be subjected to sobriety tests. Here are some tools officers might use to prove that you were driving under the influence of marijuana: 

  • Breath tests: Breathalyzer tests used for measuring alcohol intoxication are not effective in detecting THC. Although the creation of breath tests for cannabis has been attempted, none have proven effective or reliable. 
  • Blood tests: If an officer pulls you over and suspects you are under the influence of drugs, you may be subject to a blood test. Blood tests are able to detect THC in your system, but they aren’t reliable for determining intoxication as THC can remain in your system for hours or even days. Therefore, blood tests are not a reliable way to determine if someone is impaired at the time of driving. 
  • Urine tests: As with blood tests, urine tests are able to detect THC, but they are not useful for determining intoxication. In chronic marijuana users, urine tests can detect the presence of THC up to 30 days after ingestion. 
  • Saliva tests: Saliva tests, performed with an oral swab, are considered less invasive than blood or urine tests, though they present similar drawbacks. They cannot measure the amount of THC ingested and they can show a positive result up to 44 hours after ingestion.
  • Field sobriety tests: Field sobriety tests (FSTs), typically administered to determine alcohol intoxication, are unreliable for judging marijuana impairment. One study had officers try to determine THC intoxication based on a field sobriety test–from the group who ingested marijuana, officers were only able to determine that 81% were intoxicated. Meanwhile, they suspected 49% of the placebo group were intoxicated based on their performance in the FST. 
  • Drug recognition experts: Some agencies in California employ drug recognition experts (DREs)–officers who are trained to recognize signs of drug intoxication using a twelve-step process that evaluates physical characteristics such as pupil size and blood pressure. If you are suspected of driving under the influence of marijuana, a DRE might be called to examine you and testify against you in court. 
  • Other circumstantial evidence can also be used to build a case against you and might include details like red-rimmed eyes, the smell of marijuana on your person, or the presence of drug paraphernalia in your vehicle.

Keep in mind, you have the right to refuse to be administered any chemical tests or a field sobriety test so long as you have not been placed under arrest. If you refuse chemical testing after you’ve been arrested, your license will be immediately suspended and you may be subject to extended jail time if you are ultimately found guilty of a DUI.

What Defenses Are There Against Marijuana DUIs in California?

If you have been arrested for a marijuana DUI, there are several strategies a competent DUI lawyer can use in your defense. Depending on the circumstances of your case, here are a few arguments your team might use to have your charges reduced or dropped:

  • Chemical tests are an unreliable measure for intoxication. If a blood, urine, or saliva test shows positive results for THC, your team might endeavor to have the results dismissed based on the premise that you were not actually under the influence at the time of driving. 
  • If a field sobriety test was conducted, your lawyer might indicate your performance as proof that you were not intoxicated. Alternatively, if you performed poorly on a field sobriety test, your lawyer might argue that outside circumstances affected your coordination.
  • If a DRE’s analysis of your condition is submitted, your lawyer might attempt to have their testimony dismissed based on your personal medical history, the shortcomings of instruments used to perform tests, or the lack of scientific or medical validity of the DRE process.
  • The initial traffic stop and any subsequent search of your vehicle may have been unlawful.
  • You did not ingest marijuana.
  • You were not driving the vehicle.

These are only a few possible defenses a legal team might employ to fight your marijuana DUI charge. In order to understand the specifics of your case and determine the best course of action, contact a reputable DUI attorney as soon as possible.

Arrested For A Marijuana DUI In The State of California? Call Confianza Legal Today!

If you have been charged with a marijuana DUI in California, the aggressive attorneys at Confianza Legal have the expertise to help you navigate your legal battle and secure the best possible results. For over twenty years, we have represented thousands of clients facing criminal charges, including DUIs, and we have used our knowledge of the legal system to turn the tides to their advantage. Contact us today to schedule a free consultation!