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What Is the California DUI Law Related to Marijuana Use?

  • By: Ron Hedding
  • Published: August 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 safely operate a motor vehicle, 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 prosecuted before, but now that people know that it’s okay to smoke, they drive and often don’t realize that they could be prosecuted for DUI related offenses.

Also, the testing for marijuana related DUI has gotten a lot more sophisticated. They can now tell the concentration of the THC 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 Charged?

California Law on Marijuana DUI Under vehicle Code 23152(f)

I think a lot more people are now being charged with marijuana related DUI offenses because they’re not realizing that the police are looking to prosecute for marijuana related driving offenses.

But the police have definitely upped their efforts in trying to detect people who are smoking marijuana and driving. They’ve taken a lot more classes, and they’ve gotten more drug recognition experts in the field to test people for marijuana related DUI’s.

As a result, the effect has been significant. They have a lot of task forces. The prosecutors have even gotten involved, and a lot of them do not like the fact 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 prosecutions that I’ve ever seen.

If you were arrested for a DUI related to marijuana, you definitely 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 you weren’t smoking that day, you have a much better chance at avoiding a DUI conviction.

However, if they found marijuana in your car when they pulled you over, that makes it a lot more difficult to try to get around in a marijuana related DUI.

Did Law Enforcement Get Additional Training To Investigate Marijuana DUI’s?

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

I definitely think that the police have been working on testing because they have become more sophisticated in their testing ability as it relates 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.

I think they’re going away from the standard field sobriety tests that they use for alcohol related DUI’s. They’re developing different tests and strategies in order to detect a person’s ability to safely drive a vehicle as it relates to marijuana.

What Procedures Do 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?

Basically, the police officers are going to start to ask the person they pulled over a series of field sobriety questions. They are going to ask them whether or not they’ve been smoking marijuana.

How Do DUI Checkpoints In Los Angeles County Work?

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 are going to look at their driving, and at 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 they’re being investigated for a DUI related offense, they get so scared when the police starts to ask them direct questions.

They start answering questions that incriminates 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 What is Their Role In A Marijuana DUI Case?

Most police academies will give training to recognize drugs, but there are a lot of officers who take extra training to be able to qualify as a drug recognition expert.

A drug recognition expert has the ability to detect whether or not somebody is under the influence of marijuana or some other drug.  And then, they are able to take the next step and say whether that person can safely operate a motor vehicle.

When it comes to alcohol related DUI’s, there are several field sobriety tests designed for them to be able to gauge whether somebody is able to 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 given to them.

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 more so designed to determine whether the intoxication level is enough to make the argument 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, then they have the argument 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?

Just 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’s going to 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 restriction. 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 just refuse to cooperate with them, or refuse to take a test, then they would never be able to catch anybody for a DUI related case.

Therefore, they are now trying to do everything they can to figure out these types of 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 safely operate a motor vehicle.

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

I Use Marijuana On A Regular Basis But Not While Driving, Will I Still Be Prosecuted For A Marijuana DUI In California If Stopped By Police And Tested?

In California, if you use marijuana on a regular basis, you could be prosecuted for it if you are stopped by the police and tested. It’s very dangerous to use marijuana and drive.

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

That’s real 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 is then going to be whether they smell it on your breath. Can they smell it in the car?

If they can, they are going to try to get you for a marijuana related DUI. Whether or not they are going to be able to do it is going to depend on the type of testing that they use, and whether you really are intoxicated by the marijuana.

If you smoked it three days earlier, and you are not intoxicated at all, they probably wouldn’t smell it on your breath. They wouldn’t smell it in your car, and you probably won’t be prosecuted and tested for it.

The issue that most people have is that they don’t realize that they are driving around with a marijuana smell in their cars. They 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’re going to get a drug recognition expert to come in and do a number of 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 then try to gauge the level of your intoxication. 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.

Ron Hedding

About the Author Named Top Los Angeles DUI Defence Attorney by LA Times and named one of the Top 100 DUI Defence attorneys in California by the National Trial Lawyers Association. I'm the attorney other lawyers hire to defend them.