As a leading criminal defense attorneys in San Jose, CA, we get a lot of questions about Marijuana DUIs. These are the most frequently asked questions we receive.
How Stoned Do You Have to Be for a DUI Arrest?
Under California law, driving under the influence of marijuana in your system is illegal, and can place you at risk of a DUI marijuana arrest.
At the current time there is no “per se” limit as to the level of THC that someone can drive with (Unlike the .08 blood alcohol limit). Instead the law looks at whether you were under the influence of marijuana such that you were unable to operate a motor vehicle safely.
There is no denying the fact that the number of people driving under the influence with some traces of marijuana in their system is on the increase. California allows medicinal marijuana use, and across the country some states have moved to make the sale of marijuana legal for recreational purposes as well.
The difference between marijuana and alcohol use is that alcohol does tend to get eliminated from the body very quickly, usually just a few hours after ingesting. In the case of marijuana however, it is an entirely different matter. THC can actually continue to remain in a person’s body for days, and in some cases even weeks after the person has ingested the drug. That makes it very difficult to conclusively establish that a person was driving while impaired by marijuana. Minute traces of THC ingested just a week before are hardly going to impair a person’s driving abilities.
If you are arrested for DUI marijuana it is important to speak to a marijuana DUI expert in these type of case. At VIB Law we are familiar with the issues in this case and will fight for your rights as a medical marijuana user.
What’s the difference between driving high and driving drunk?
When it comes to DUIs, the California Vehicle Code doesn’t use terms like ‘driving drunk” or “driving high.” Instead, the law makes it illegal for any person to “drive under the influence” of a substance whether that substance is alcohol, marijuana, prescription drugs or a combination of these substances
Probably the major difference between so called, “Alcohol DUIs” and “Marijuana DUIs” is that in California law, there is not currently a “per se” statute for marijuana cases.
California Vehicle Code Section 23152(b) outlines California’s “ Per Se” .08 blood alcohol level for DUIs. A “per se” statute means that the person can be prosecuted for having a .08 blood alcohol at the time of their driving, whether or not they were in fact impaired by the alcohol. California does not currently have such a statute for marijuana.
In states with so-called “per se” “Marijuana DUI” laws, a specified amount of delta-9-tetrahydrocannabinol (THC), (The active ingredient in cannabis) in the driver’s system at the time of the offense will conclusively establish impairment. For example in Colorado and Washington, there is a “per se” finding of impairment for drivers found with 5 nanograms of active THC per milliliter of blood in their system.
How do police test for marijuana impairment by drivers in California?
Police officers will normally investigate a “Marijuana DUI” by calling an officer to the scene of the traffic stop who is a “Drug Recognition Expert” or “DRE.” This officer will conduct Field Sobriety Exercises to attempt to determine the driver’s impairment. Ultimately, if an arrest is made a blood or urine sample will be taken and tested for the presence of THC.
The problem is that determining whether someone is impaired by marijuana, as opposed to having merely used the drug, is far more complicated than showing whether someone is impaired due to the use of alcohol.
In February 2015 the National Highway Traffic Safety Administration (NHTSA) released the results of “the first large-scale [crash risk] study in the United States to include drugs other than alcohol,” which it described as “the most precisely controlled study of its kind yet conducted.”
The researchers found that, after controlling for various factors, a detectable amount of THC, the active ingredient in pot, in the blood did not increase the risk of accidents at all. Having a blood alcohol level of at least 0.05 percent, though, increased the odds of being in a crash by 575 percent.
Although chemical tests (like blood tests and urine tests) can show the presence of marijuana in your system, there currently is not a scientific consensus about what level of THC in your system means you are impaired.
Also, there is a huge problem in that THC can remain in your system for a long period of time after it is no longer psychoactive or having an effect on your system. For example, a chronic user of marijuana may have a positive test days or even weeks after their use. Unlike alcohol, it is extremely difficult to take the results of a positive THC and then extrapolate back in time as to the amount and recency of use.
It is anticipated that after Prop 64, there may be newer and more accurate testing devices developed or additional training that more accurately shows marijuana impairment for DUIs. For now though, “Marijuana DUIs” should be regarded as suspect and an experienced “Marijuana DUI” attorney should be hired to fight them.
What does the DA have to show to prove a Marijuana DUI?
Vehicle Code Section 23152(e) contains two elements, “Driving” and being “Under the Influence” of a drug. Calcrim 2110 defines both of these elements for jurors.
Jury Instruction – Calcrim 2110
The defendant is charged [in Count ______ with driving under the influence of a drug or under the combined influence of an alcoholic beverage and a drug].
- To prove that the defendant is guilty of this crime, the People must prove that:
The defendant drove a vehicle; AND - When (he/she) drove, the defendant was under the influence of a drug or under the combined influence of an alcoholic beverage and a drug.
A person is under the influence if, as a result of (drinking [or consuming] an alcoholic beverage/ [and/or] taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.
The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.
A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.
It is not a defense that the defendant was legally entitled to use the drug.
If the defendant was under the influence of (an alcoholic beverage/ [and/or] a drug), then it is not a defense that something else also impaired (his/her) ability to drive.