Author: Mariya Melkonyan | Published: January 25, 2022 | Category: Federal Crime

While the recreational and medicinal use of marijuana is legal in some states, including California, you can still be arrested for driving under the influence of marijuana. Breaking marijuana DUI laws is a serious offense, and a conviction could change the course of your life. Penalties for marijuana DUI charges correspond with alcohol-related DUIs but don’t have legal limits in place.

This means if you have any amount of detectable marijuana in your blood test, you may be charged with a marijuana DUI. To avoid harsh penalties, contact a DUI defense lawyer if you’re charged with a marijuana DUI. The right legal team can help develop a strong legal argument needed to win your case.

The crime of driving under the influence of marijuana is legally defined by California Vehicle Code 23152(f). This California statute prohibits driving under the influence of drugs, whether they were prescribed or illicit. The use of any drug that impairs the ability to drive safely can result in charges under this law. This statute applies to:

  • Illegal drugs such as heroin, cocaine, and meth
  • Prescription painkillers and sleeping medications
  • Over-the-counter medications used for allergies, colds, and sleep aids
  • Marijuana use, even if used in the prescribed manner

A driver is considered under the influence of marijuana under the following circumstances. First, the driver has consumed cannabis, and their physical or mental abilities are impaired. Second, their abilities are impaired to the point where they cannot operate their vehicle with the same safety and caution as a sober driver. Violators of this statute are charged with marijuana DUI.

Experts disagree about how much marijuana is needed to impair someone’s driving ability. This means if a driver is lawfully arrested and undergoes drug testing, even small amounts of marijuana can result in DUI charges.

Does Marijuana Impair Driving Ability?

A 2015 scientific study examined driving habits and abilities in drivers after smoking marijuana. It found that the primary psychoactive compound in marijuana, tetrahydrocannabinol (THC), impaired driver’s cognition, psychomotor performance, and overall driving ability. Consuming marijuana hurt the study participants’ ability to multi-task and correct driving errors.

Research from the National Highway Traffic Safety Administration (NHTSA) found that 56% of drivers involved in serious or fatal accidents had at least one drug in their system. The percentage of drivers who tested positive for cannabinoids ranged from a low of 22% to a high of 32.9% of accidents across the four quarters of 2020.

Drivers with cannabinoids in their system accounted for the second-highest amount of serious or fatal accidents. Only drivers with alcohol in their system accounted for more.

How Can Prosecution Prove a Marijuana DUI Charge?

Since there is no legal limit for marijuana in California, prosecutors must present a number of arguments to prove a driver consumed marijuana. They must demonstrate that the consumption-led to their impairment.

Marijuana DUI Tests

Once a driver is arrested for marijuana DUI, they must submit to a drug test. Drivers have the option of taking a urine or blood test to detect if marijuana is present in their bodies.

Saliva tests aren’t typically used because they can only detect the presence of marijuana and don’t show how much cannabis was consumed. Saliva tests for marijuana aren’t currently admissible in court.

Blood tests are commonly used to check for THC presence. THC is not metabolized at a steady rate like alcohol. Levels of THC tend to peak quickly, then rapidly decline. By the time someone is arrested and tested, evidence of THC may be gone. However, small levels can be detected in the bloodstream even if a driver hasn’t recently used marijuana.

Urine tests can’t detect THC levels but look for the presence of inactive metabolites found in marijuana. These metabolites can be detected through urine long after a driver has consumed cannabis. A positive urine test alone doesn’t mean a driver was under the influence of marijuana.

The prosecutor can use the results from blood or urine drug tests in their case against the driver. Marijuana DUI tests are not necessary to convict someone of the charge but may help prove impairment.

Defendants statements made to the police officer

During a traffic stop, police may ask a driver if they’ve consumed marijuana or any other substances. Any statements made to police officers during their traffic stop can be used against them. This is also true for their statements to police after being arrested for marijuana DUI and reading their rights.

Presence of marijuana in the vehicle or on a person

After a driver is pulled over in a traffic stop, the police officer may ask to search the driver or vehicle if they suspect impairment from drugs or alcohol. The driver can refuse any consent to have the officers search their vehicle or person. Having said that, if the officer has reasonable suspicion of criminal activity, they can still conduct a search.

Once a driver gives police permission, they collect any marijuana or marijuana paraphernalia located within the car or on the driver to use as evidence.

Physical indications of intoxication while being searched

During a traffic stop, police officers look for physical signs of marijuana use or intoxication. Physical symptoms such as red eyes, dilated pupils, rapid heartbeat or breathing, and slow reaction times indicate marijuana use.

Law enforcement officers may also detect the odor of marijuana coming from the driver’s body or vehicle. These indicators can be used as evidence in a marijuana DUI case.

Show the Defendant is a Regular User or is addicted to marijuana

The prosecutor may use a driver’s history of marijuana use to show a pattern of behavior. How long a driver has used marijuana, and their reasons for using marijuana may impact their case and be used as evidence of marijuana addiction.

Using DRE’s to Build the Case

Drug recognition experts are police officers who receive special training to recognize the impairment of drivers caused by alcohol and drugs. DREs examine the person suspected or arrested for DUI to evaluate if an impairment is involved.

The DRE may run field sobriety tests, interview the driver, take their vital signs, or look for physical symptoms of intoxication.

The DRE may be on the scene as an arresting officer or conduct their work at a police precinct or intake center once a person is arrested. A prosecutor can use the information from the DRE evaluation as evidence for their case.

Can the Driver Refuse to Take the DUI Tests for Marijuana?

California’s implied consent law requires drivers to test for drugs or alcohol if they are lawfully arrested for marijuana DUI. A roadside stop is not considered a legal arrest, so drivers have permission to refuse to test until they are officially placed under arrest.

Once drivers are arrested, they are subject to chemical testing through blood or urine to detect the presence of drugs, including marijuana.

Refusing to take a drug test after an arrest can result in penalties. Consequences include the suspension of the driver’s license for one year, regardless of if they’re later charged with DUI or found not guilty. Drivers who refuse to submit to drug testing on multiple occasions post-arrest can receive a lifetime driving suspension.

The Penalties for Marijuana DUI Conviction

Once a driver is convicted of marijuana DUI, the penalties they face depend on several factors. This includes if they’ve had past offenses of DUI if injuries were involved in the accident and the seriousness of the crime. Driver’s can be convicted of a misdemeanor or felony crime based on the circumstances of the case.

Penalties Based on Number of Offenses

In California, the penalty for a marijuana DUI conviction depends on the driver’s history of DUI charges and the severity of the case.

First violation

Punishment for the first DUI conviction includes serving between 96 hours to 6 months in county jail, a suspension of the driver’s license, and a fine of up to $1,000. Drivers may also face informal probation after their conviction.

Second violation

Drivers face harsher penalties if a marijuana DUI conviction occurs within 10 years of a separate DUI conviction. Second DUI offenses result in imprisonment for a minimum of 90 days and up to one year, as well as a fine between $390 and $1,000. If the court deems the driver a public safety risk, they may not allow a restricted driver’s license to be issued.

Third violation

A third DUI conviction within 10 years results in a driver surrendering their license and losing driving privileges in California. They also face between 120 days and one year in county jail and a fine of up to $1,000. Following a third DUI conviction, the court designates the driver a habitual traffic offender for 3 years.

Misdemeanor DUI

Many marijuana DUI offenses are charged as misdemeanor crimes unless a serious accident or injury has occurred. The penalties for misdemeanor DUI convictions depend on how many prior DUI offenses a driver has previously been convicted of.

In the event of a serious accident that causes injuries, the prosecutor may charge the driver with either a misdemeanor or a felony DUI based on their discretion.

Felony DUI

Some cases of marijuana DUI are charged as felonies. This happens when a driver is charged with their fourth DUI offense within 10 years or if they have a previous felony DUI conviction. Felony DUI charges also occur when an accident results in the serious injury or death of others.

Penalties for a felony DUI conviction result in a state prison term of 2-4 years and a fine of up to $5,000. Drivers must surrender their license and aren’t permitted to drive after the conviction.

Felony DUI causing death

If an accident victim dies due to a driver’s impairment, they can face additional charges. In this instance, they may be charged with gross vehicular manslaughter while intoxicated and face 4-10 years in state prison if convicted.

If prosecutors believe the driver acted with willful disregard for human life, they may charge them with DUI murder, also called Watson murder. Conviction of a second-degree murder charge results in a minimum of 15 years in state prison.

If a driver is charged with marijuana DUI, they can use a variety of defense tactics to fight the charges. Common arguments used include:

The Driver has not used marijuana

A negative drug test is a good indicator that the driver was not using marijuana at the time of their arrest and, therefore, is not guilty of DUI charges. Even positive tests don’t necessarily indicate marijuana involvement.

Flaws in the testing equipment or procedure could have produced a false positive. Some common medications and substances have reportedly caused false positives for THC urine tests.

Whether the driver had a legal right to use marijuana

The legal right to use marijuana is not a defense against marijuana DUI. This applies even if the driver used marijuana as part of their medical regime to treat a health condition.

However, if the driver was using marijuana to treat a condition such as a migraine, they could argue their impairment was due to their condition, not the marijuana they used in treating it.

The driver used marijuana but was not high or impaired while driving

While drug tests show whether or not a driver had marijuana in their system, they cannot provide information about when it was consumed. Drivers who use marijuana more frequently may test positive for the drug even if they haven’t consumed it in days.

A DUI defense lawyer knows the prosecutor can’t use a positive test to prove the driver was high or impaired while driving.

Drivers charged with marijuana DUI may also be charged with other marijuana-related offenses. Additional charges include driving in possession of marijuana and unlawful possession of marijuana.

Unlawful possession of marijuana for personal use

Under California law, adults over 21 may legally possess up to 28.5 grams of cannabis and 8 grams of concentrated cannabis. Anyone over the age of 18 who possesses quantities above the legally permitted amounts will be charged with unlawful possession of marijuana. A conviction of this offense may result in a fine of up to $500 and up to six months in county jail.

Driving in possession of marijuana

Driving with an open container of marijuana or loose marijuana is prohibited under California law unless the container is located in the vehicle’s trunk. Violations of this law result in charges of driving in possession of marijuana. This is considered an infraction, and the resulting penalties include a fine of up to $100.

Steps to Take if You’re Charged With Marijuana DUI

Anyone who uses marijuana is at risk of being charged with a marijuana DUI. Drug testing and legal defenses for marijuana DUI cases can be complicated, and the penalties for a marijuana DUI conviction are severe.

If you’ve been charged with a marijuana DUI or another marijuana-related defense, you need to hire a defense lawyer.

marijuana dui defense attorney - Mariya Melkonyan
The Law Offices of Mariya Melkonyan

To develop a solid defense for your case, hire a California marijuana DUI defense attorney from The Law Offices of Mariya Melkonyan. Mariya Melkonyan is a former Deputy District Attorney with the experience and strategic thinking to help you win your case. Contact the Law Offices of Mariya Melkonyan today for a free case evaluation.

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