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What Is the California DUI Law Related to Marijuana Use?

Posted by Ronald D. Hedding | Aug 22, 2020

In California, marijuana is now legal. In turn, that has caused a flood of DUI-related marijuana arrests.  However, the bottom line is that the law has always been the same. For instance, if you ingest a substance, such as marijuana, and it affects your ability to operate a motor vehicle safely, you can be charged with a DUI under California Vehicle Code 23152(f). And so, just because marijuana is legal, it doesn't mean that you can smoke it and drive if it's going to affect your ability to drive.

Prescription pills are legalized. For example, Ativan is legal, but if you take Ativan or a similar prescription drug, and you crash or cause an accident because that drug affected your ability to drive, you're going to be charged with driving under the influence.

And, if you hurt somebody, you are looking at real problems, state prison even. Currently, marijuana is being prosecuted at a record pace.  It was being charged before, but now that people know that it's okay to smoke, they drive and often don't realize they could be arrested for DUI-related offenses.

Also, the testing for marijuana-related DUI has gotten a lot more sophisticated. They can now tell the THC concentration in the person's blood to see how much they're intoxicated.

And similar to the alcohol-related field sobriety tests, the police are now using drug recognition experts to test the person for marijuana. Therefore, they're prosecuting people in Los Angeles and across California at a record pace.

How Did The Legalization Of Marijuana Impact DUI Laws and the Number Of People Charge?

Many more people are now being charged with marijuana-related DUI offenses because they do not realize that the police are looking to prosecute them for marijuana-related driving offenses. But the police have upped their efforts to detect people smoking marijuana and driving. They've taken many more classes and gotten more drug recognition experts to test people for marijuana-related DUIs.

As a result, the effect has been significant. They have a lot of task forces. The prosecutors have even gotten involved, and many of them do not like that marijuana was legalized.

So, they are now prosecuting people for DUI-related offenses related to marijuana at a record pace in California, specifically in Los Angeles, where I've been practicing for the last 26 years. It's the most marijuana-related DUI prosecution that I've ever seen.

If you were arrested for a DUI related to marijuana, you want to get an attorney. The testing is now more sophisticated. So hopefully, if they're finding THC in your blood because you smoked days earlier and weren't smoking that day, you have a much better chance of avoiding a DUI conviction. However, if they found marijuana in your car when they pulled you over, it is more challenging to get around in marijuana-related DUI.

Did Law Enforcement Get Additional Training To Investigate Marijuana DUIs?

I believe that law enforcement is receiving training for DUIs. The prosecutors have also been involved in the activity of handling DUI cases. I think the system itself has been working on testing to see the level of marijuana intoxication.

The police have been working on testing because they have become more sophisticated in their testing ability related to DUI offenses. So, they've stepped up their testing. And their experts, who are involved in testing for marijuana, have become more involved in trying to figure out the strength of the marijuana that a person is under.

They're going away from the standard field sobriety tests for alcohol-related DUIs. They're developing different tests and strategies to safely detect a person's ability to drive a vehicle related to marijuana.

What Procedures Does Police Follow for a Suspected Marijuana DUI Traffic Stop?

When Someone Is Pulled Over, And Law Enforcement Suspects That The Driver Is Under The Influence Of Something Other Than Alcohol, What Is The General Protocol That's Followed To Determine Whether Or Not The Officers Will Make An Arrest?

The police officers will ask the person they pulled over a series of field sobriety questions. They will ask them whether or not they've been smoking marijuana. They check to see if they can smell marijuana, and that's what their protocol is now. They are looking to figure out whether someone's been drinking and driving with alcohol and whether they've been smoking marijuana.

They will look at their driving and how they are walking when they're ordered to get out of the vehicle. They are also going to look at their speech to see whether it's slurred, and they are going to check their eyes to see if their pupils are dilated.

There is a whole slew of things that law enforcement is doing to verify whether somebody is involved with marijuana and driving a vehicle. Believe it or not, the most effective weapon they have is asking questions. Unfortunately, when people get pulled over by the police and are being investigated for a DUI-related offense, they get so scared when the police start to ask them direct questions.

They start answering questions that incriminate them. I can't tell you how many people are asked, “Hey, do you have any drugs in the car?” And they respond by answering, “Yes, I have drugs,” and continue to tell them where the drugs are in the car.

That gives the police probable cause to search the car. If they find something, they can collaborate that the person was smoking marijuana and driving, and they'll be able to prosecute them.

What Is A Drug Recognition Expert and Their Role In A Marijuana DUI Case?

Most police academies will give the training to recognize drugs, but there are a lot of officers who take extra training to qualify as drug recognition experts. A drug recognition expert can detect whether or not somebody is under the influence of marijuana or some other drug.  And then, they can take the next step and say whether that person can safely operate a motor vehicle.

When it comes to alcohol-related DUIs, there are several field sobriety tests designed to gauge whether somebody can safely operate a motor vehicle. They can then decide whether that person can or cannot safely operate a motor vehicle because they either passed or failed the tests.

The same goes for marijuana. They have a whole list of tests that they are using. The tests aren't just designed to determine whether or not someone's under the influence of marijuana.

The tests are designed to determine whether the intoxication level is enough to argue that a particular person can't safely operate a motor vehicle. For example, if they tell somebody to walk a straight line and that person can't walk in a straight line, they've got an argument that the person is affected by something.

And if they have marijuana in their system, they argue that marijuana is the causing factor. Therefore, that person is intoxicated and can't safely operate a motor vehicle.

Can I Refuse The Request For A Blood Draw Or Chemical Test In A Marijuana DUI Case?

Like alcohol or any substance, if the police believe that you're under the influence of marijuana and ask you to take a blood test or some other test, and you refuse, it will be counted as a refusal.

Challenge Blood Sample Results in a California DUI

You will lose your driver's license for a year with no restrictions. The police have a difficult job when it comes to trying to figure out if somebody is under the influence of something.

If people can refuse to cooperate with them or take a test, they will never catch anybody in a DUI-related case.

Therefore, they are now trying to do everything to figure out these things. So, you have to cooperate with them. In California, it's called the Implied Consent Law.

The Implied Consent Law states that you have to cooperate with the police if they believe that you're under the influence of alcohol, marijuana, prescription medication, or any other drug that affects your ability to operate a motor vehicle safely.

Will I be Prosecuted for Marijuana DUI if I'm Not Using While Driving?

I Use Marijuana Regularly But Not While Driving, Will I Still Be Prosecuted For A Marijuana DUI In California If Stopped By Police And Tested? If you use marijuana regularly in California, you could be prosecuted for it if you are stopped by the police and tested. It's hazardous to use marijuana and drive.

In my opinion, the issue is going to be two-fold. Number one, why did the police stop you? If you were swerving all over the road and they could smell marijuana, they would try to get you for a DUI.

That's simple. If they stopped you for a minor traffic violation, and they don't yet realize that you might have been smoking marijuana, the issue will be whether they smell it on your breath. Can they smell it in the car?

They will try to get you for a marijuana-related DUI if they can. Whether or not they will do it depends on the type of testing they use and whether the marijuana intoxicates you. If you smoked it three days earlier and are not intoxicated, they probably wouldn't smell it on your breath. They wouldn't smell it in your car, and you likely won't be prosecuted and tested for it.

Most people have an issue that they don't realize that they are driving around with a marijuana smell in their cars. The marijuana smell is in there whether they smoked it or not. That's a free opportunity for the police to try to prosecute you. As a result, they will get a drug recognition expert to come in and do several tests on you to determine whether or not you are under the influence of marijuana.

They may even try to get a urine or blood sample and gauge your intoxication level. That's how they get somebody for a DUI-related marijuana arrest. Hedding Law Firm is a criminal defense law firm located in Los Angeles County at 16000 Ventura Blvd #1208 Encino, CA 91436. Contact us for a free case evaluation at (213) 542-0963.

About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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