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Driving Under the Influence of Marijuana

Most people understand that driving under the influence (DUI) of alcohol in California is considered a crime. However, when it comes to driving under the influence of marijuana in California, people are much less familiar with the rules, regulations and penalties involved. This is especially true in light of California's medical marijuana laws, and the effects of driving after smoking or consuming marijuana products.

The same California Vehicle Code that covers alcohol also applies to any substance, including marijuana. Under California Vehicle Code Section 23152, Driving Under Influence of Alcohol or Drugs:

(e) it is unlawful for a person who is under the influence of any drug to drive a vehicle; and

(f) it is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.

(Note:  the same is true when Vehicle Code Section 23153 is involved; this code can apply when someone has been injured due to a DUI-related accident.)

Penalties for a first conviction can include jail time up to 6 months, fines up to $1,000, suspended license of up to 6 months, and possible interlock ignition device placed on your vehicle. Subsequent convictions (second offense, third offense, etc.) can result in greater penalties including increased fines, longer jail time, and additional driving restrictions.

How Much Marijuana is Considered to be “Impaired”?

Marijuana is treated differently from alcohol because there is no specified amount of “drug” in the body to establish a level of impairment. Marijuana's primary psychoactive ingredient is a tetrahydrocannabinol, also known as THC.

Under California law, a blood alcohol content (BAC) of 0.08% or higher can be used to prosecute adult drivers for DUI. This number is lower for other drivers, including: 0.04% for commercial vehicle drivers, and 0.01% for drivers under 21, or already on probation for a previous DUI).

However, marijuana has not established a baseline conviction level. For marijuana use, a prosecutor must show that the driver was under the influence of marijuana; and because of the influence of marijuana, the driver was impaired to such a degree that he or she can no longer drive with the characteristics of a sober person under similar circumstances.

Unlike some states, such as Arizona, California law has not established an automatic DUI conviction for trace amounts of THC in the blood. (A law was proposed by the California Legislature to establish a 2 nanogram-per-milliliter blood limit impairment level, but was defeated in committee).

How Do Police Test for Marijuana?

Every driver in California is considered to have given implied consent to be chemically tested for drugs or alcohol when arrested for a DUI. This includes chemical testing for marijuana. Because of the implied consent, refusal to take a chemical test after being arrested may result in additional penalties, including additional jail time and a longer driver's license suspension.

If a police officer suspects the driver of being under the influence of marijuana, they will ask the driver to submit to a blood test. (The breath tests used to detect BAC levels do not apply to testing THC levels). In some cases, the police may have the driver take a urine test instead.

However, there can be many problems with the reliability and chemical testing methods used to detect marijuana. Smoking marijuana, or consuming THC products including edible candies will show levels of THC in the blood soon after consumption. However, while the “high” may only last an hour or two, THC can be still be detected in the blood days later, when the individual is no longer impaired.  Even less reliable are urine tests, which can detect marijuana weeks after use.

What If I Have a Prescription for Medical Marijuana?

A prescription from a doctor prescribing medical marijuana may not help you avoid a marijuana DUI charge. In fact, California DUI laws apply even if the drug is prescribed. A driver may be charged with a DUI if under the influence of any drug which impairs their driving ability.

Defenses for Marijuana DUI Charges

The prosecution has to prove a number of elements to establish a conviction for a DUI charge, whether under marijuana, alcohol or any other drug. These elements include proving that the individual:

  • was the driver;
  • was under the influence of marijuana; and
  • their driving was impaired.

If the prosecution cannot establish each of the elements, then the individual may be found not guilty.

Possession of Marijuana in the Car

Driving under the influence of marijuana is a serious offense, with stiff penalties. However, an individual may face additional criminal charges if they are found with marijuana in their possession or in the car. The amount of marijuana may affect whether the person is charged with an infraction, a misdemeanor, or if a large amount is found, a possible felony.

Experienced DUI Attorney Representation:

Lynn Gorelick has more than 30 years of DUI experience, and understands the how DUI charges apply to alcohol as well as marijuana. She understand the penalties involved, and how to approach the individual facts of each case for the greatest chance of success, keeping her clients out of jail. Whether are arrested in Oakland, Berkeley, El Cerrito, Walnut Creek, Hayward, Richmond, Fremont, Dublin or anywhere else in Contra Costa or Alameda County, Lynn Gorelick is familiar with the local DUI laws, and the local officers and prosecutors involved.

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