9 Things You Should Know About Marijuana DUI

In this post, I will explain (9) things you should know about California’s Marijuana DUI Laws.

Let’s get started…

But first, watch this video to get an in-depth understanding of how Marijuana DUI is prosecuted.

Overview of Marijuana Laws

Marijuana is a controlled substance and is legal to possess in California beginning January 1st, 2018 after the passage of Proposition 64.

Is Smoking Marijuana And Driving Legal?

Driving while under the influence of marijuana, however, is unlawful whether you legally ingested it or smoked it.

Under California Vehicle Code 23152(f) VC, you can be arrested and charged for driving under the influence of drugs if the drug impaired your mental abilities so as to render you unable to drive with the caution of a sober person using ordinary care under similar circumstances¹.

What Are The Effects Of Marijuana?

Marijuana contains a substance called delta-9-tetrahydrocannabinol (THC)

When smoked, the drug passes quickly from the lungs to the bloodstream and then to the brain and other organs.

Besides giving you a “high,” other effects can include:

• Drowsiness
• Memory impairment
• Altered sense of time
• Increased appetite
• Mood changes

Marijuana use and its effects vary among users. However some studies show that most Marijuana intoxicated drivers show only modest if any impairment under the influence of Marijuana².

Effects Of Marijuana On Driving Behavior

There are some studies that indicate that marijuana use does impair driving³ while others are inconclusive.

If driving after having smoked or ingested marijuana, some research tends to show that it may double the risk of causing an accident⁴.

Further research also showed that drivers high on pot drove slower or more cautiously than those who drank alcohol who tend to speed, drive erratically and are less focused on driving⁵.

What Testing Methods Do Law Enforcement Use To Detect Impairment?

There is no objective test for impairment from marijuana or what level, if any, you may be presumed to be under the influence⁶.

Whether marijuana impairs your ability to drive is not a matter of general consensus and detection of the drug in your system is not necessarily indicative of impairment.

How Long Does Marijuana THC Stay In Your System?

If you used marijuana on a regular basis and then stopped, the THC can remain in your system for up to 30 days.

However, you can be charged and convicted based upon other evidence that you were driving impaired.

How Much Marijuana In Your System Proves Impairment?

Under California law, there is no “per se” violation for marijuana DUI, meaning there is no level of delta-9-tetrahydrocannabinol (THC), the active ingredient in cannabis, which is considered illegal or for which the law presumes you are under the influence or impaired.

There is no objective test for impairment from marijuana or what level, if any, you may be presumed to be under the influence⁷.

Evidence That you Were Driving Impaired May Include:

• Driving conduct
• Statements
• Odor of marijuana
• Demeanor
• Performance on field sobriety tests (FST)
• The existence of the drug in your car

What Driving Conduct May Exhibit Impairment?

Driving conduct that may exhibit impairment includes the following:

• Weaving within lanes,
• Failing to stop at a stop sign or red traffic signal,
• Swerving,
• Driving too slowly,
• Being asleep in your car at the side of the road and causing an accident.

How Do Police Attempt To Determine If Marijuana Is The Cause Of Impairment?

To determine if a drug is the cause of your alleged impairment, there are law enforcement officers called Drug Recognition Experts or DREs who are trained to look for certain signs.

These may include:

• Dilated pupils
• Rapid breathing
• Rapid heart rate
• Red eyes
• Odor of marijuana

What Happens If The Officer Believes You Are Under The Influence?

If the officer feels there is probable cause to believe you are impaired, then you will be asked to submit to a breath or blood test⁸.

If you do choose the breath test and it is negative for alcohol, the officer has the right to ask that you take a blood test if the officer reasonably believes you used a drug⁹.

The Tests Used to Detect Marijuana in Your System Include the Following:

• Blood Test
• Urine Test

A blood test may detect the presence of THC in your system but it is more significant for what the test does not reveal:

What Evidence is a Blood Test Unable to Provide?

• Unlike alcohol, the test cannot reveal when you used the drug or at least within a few hours.
• It is not a reliable test of how much you ingested or smoked.
• There is no consensus on how much marijuana in your system indicates you are impaired when driving

Because marijuana is fat-soluble, it remains in your body for hours or days after use it depending on whether you are a chronic or occasional user. If used occasionally, it can remain for 12 hours. If you are a chronic user, it can last from 2 to 30 days.

Urine Test

A urine test may be requested if you are a hemophiliac or otherwise cannot have blood drawn.

Are Urine Tests Reliable?

Urine tests for marijuana are considered even less reliable than blood tests.  These do not check for the presence of delta-9-tetrahydrocannabinol or THC but for inactive metabolites such as THC carboxylic acid.

This substance can remain in your body for 30 days, long after you experienced its psychoactive effects.

What Other Molecules Will A Marijuana Urine Test Detect?

A urine test can also detect the presence of THC-cannabidiol, which is a non-psychoactive substance found in the drug.

These substances are in some strains of marijuana that are used for medical purposes.

Is a Saliva Test Reliable?

There are also saliva tests that have been used in other countries, like Australia, but getting a test on the roadside is not as easy or as effective as it is at a lab since saliva has enzymes that break down molecules so that samples will degrade before they get to a lab for testing.

Currently, results of a saliva test is not admissible in court and is only used by an officer on the scene to make inquiries, similar to use of a PAS or preliminary alcohol screening test¹⁰.

Legal Defenses For Marijuana DUI

The defenses to marijuana DUI may include any of the following:

You Were Not Impaired

Merely because a blood, urine or saliva test revealed the presence of marijuana in your system is not evidence of impairment.

THC can be detectable for up to 12 hours after ingestion or inhalation, long after its effects have dissipated.

As indicated, a urine test that shows THC metabolites in your system only means that you could have last smoked up to a month ago.

Although the DA can use the presence of THC in your system and argue that you showed signs of impairment based on your FST performance or other evidence, a good defense attorney can show that perfectly legal factors other than drugs or alcohol accounted for this erroneous conclusion.

Flawed Testing

A suspected motorist’s performance on a field sobriety test (FST) is often used as evidence of impairment.

Flawed testing occurs when the tests are not properly administered.

Example:

An officer might perform a horizontal gaze nystagmus test which tests for alcohol intoxication and is not reliably used for drug impairment.

Also, blood, urine and saliva tests are not without flaws. The technician who draws your blood or urine and labels it or preserves it must be trained and certified¹¹. Also, these tests do not demonstrate when you smoked or ingested the drug.

Additional Defenses: See 8 DUI drug defenses that can get your charges reduced or dismissed.

Penalties

The penalties and sentencing for driving while under the influence of marijuana are the same as for a DUI.

It is generally charged as a misdemeanor.

Penalty For First DUI Marijuana Conviction:

• 96 hours in jail up to 6 months
• Fine of $390 to a maximum of $1000
• Driver’s license suspension of 6 months
• Summary or informal probation of 3 to 5 years
• Participation in a DUI or drug education class for 3-months

The penalties increase with each subsequent Marijuana DUI conviction with mandatory minimum jail sentences imposed.

There are circumstances where a Marijuana DUI is elevated to a felony.

• If you cause an accident with serious bodily injuries or death or \
• Have a fourth DUI, DUI of Drugs or “wet reckless” conviction, or any combination, within 10 years, or
• Have a DUI because of a prior felony DUI conviction, then the DA can charge you with a felony with the following potential sentence:

Felony DUI Marijuana Penalties

• 180 days in county jail
• 4-year license suspension
• Probation for up to 5 years
• Participation in an 18-month alcohol or drug education class
• Fine up to $5000
• Restitution to victims if involved in an accident

A Chemical Test Refusal is Also an Aggravating Factor with the Following Adverse Consequences:

• One-year suspension of your driver’s license for first-time offender
• 2-days added to a jail sentence for a first offender
• 9-month’s participation in DUI school instead of 3-months

Expungement For Marijuana DUI

You can seek post-conviction relief by obtaining a DUI expungement of your conviction under California Vehicle Code 23152(f) by petitioning the court pursuant to Penal Code 1203.4. By expunging your conviction, you can state under oath that you have not been convicted of that offense.

Your expunged conviction will also not appear on any public record databases so that any landlords or private employers will see no criminal convictions on your record. This is the most significant benefit of an expungement.

Eligibility for Expungement

Most Marijuana DUI or DUID convictions are misdemeanors and are eligible for expungement. The criteria for eligibility includes the following:

• You served no time in state prison
• You completed all terms and conditions of your probation
• You did not commit a subsequent felony
• No criminal charges are pending

A felony Marijuana DUI might be eligible for expungement but only if you did not serve time in state prison. In most marijuana DUI felony cases, you would serve your time in county jail unless some aggravating factor prompted the judge to sentence you to state prison.

If you were convicted of felony marijuana DUI, you can petition the court to reduce it to a misdemeanor before having it expunged under PC 17(b)(3) since it is a “wobbler” offense, meaning the DA could still have charged you with a misdemeanor instead.

Since you have to wait until your probation has been served, you can ask the court to reduce your probation under PC 1203.4 so you can request an expungement sooner.

Important DUI Information

• The 3 Stages Of A Misdemeanor DUI Court Process
• How To Receive A Restricted License After A DUI Arrest
• 8 Reasons Prosecutors May Reduce Or Dismiss DUI Drug Charges
• How To Win A DMV Hearing

1. Vehicle Code 23152(f) – It is unlawful for a person who is under the influence of any drug to drive a vehicle., available at https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23152 [↩]
2. The effect of cannabis compared to alcohol – National Institutes Of Health [↩]
3. See National Institutes Of Health Meta-Analysis [↩]
4. See., Marijuana Use & Vehicle Crashes [↩]
5. See., The influence of Cannabis on Driving [↩]
6. See Also Drug & Human Performance Fact Sheet – NHTSA [↩]
7. See Also Drug & Human Performance Fact Sheet – NHTSA; See Also Marijuana Impaired Driving – A Report to Congress. NHTSA [↩]
8. People v. Macknic (1967) 257 Cal.App.2d 370 [↩]
9. People v. McGinnis (1953) 123 Cal.App.2d Supp. 945 [↩]
10. See Also Marijuana Swab Testing Los Angeles Times [↩]
11. People v. Williams (2002) 28 Cal.4th 408, 417 [↩]