California continues its seemingly inexorable march toward marijuana legalization, but even if weed becomes legal, driving under the influence won’t. Tens of thousands will still be prosecuted for allegedly driving when their ability to see, think or operate their motor vehicle is impaired by any psychoactive substance, including weed.
As a former Prosecutor some of the most difficult DUIs to prosecute is a marijuana DUI. It is a very defensible case for a competent attorney. For one, unlike alcohol there is no “per se” limit of marijuana in your system to make it a crime. A marijuana driver will only be charged for being “impaired”. I imagine there will be a “per se” limit of marijuana in the near future.
The issue is the “active” ingredient in marijuana that may impair a person is Delta 9 THC. It metabolizes extremely fast. It would be difficult to measure someone for an accurate level while having an officer still conduct a thorough San Diego DUI investigation.
Another issue is the only chemical sample would be blood. Obviously, a breath machine would be of no use (unless a crafty inventor came out with a device). Urine does not give an accurate reflection of intake at a particular time. One final consideration is this…what about the person who never intended on ingesting marijuana? Ok, I am not talking about eating pot brownies or something like that because the same could be said about someone not knowing a drink was spiked. In these cases they ingested something. How about someone who truly does not know the aroma of marijuana and gets high without really wanting to? Is that a San Diego DUI? Just a thought. Lets move on.
Here’s a run-down on current California drugged driving law, how people get popped for it, what the punishments are, and how to act right.
What is a DUI for Marijuana?
A DUI for drugs is considered driving under the influence of drugs (in this specific case, marijuana). Sometimes, it can be difficult to prove what constitutes a “DUI” for marijuana, since blood tests can’t prove when you consumed marijuana, just that you did at some point. “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects,” the National Highway Traffic Safety (NHTSA) writes.
According to California law, in order to be convicted of a DUI for drugs, you must be impaired to such an extent that you lack the “ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.”
Thus, the charge and conviction can be rather subjective and usually takes into account some combination of your driving pattern, physical appearance, performance of field sobriety tests, and a blood test for marijuana.
How You Can Get Charged with a DUI
If you are pulled over or encounter a cop who expects you are under the influence of marijuana, he will call in a Drug Recognition Evaluator (DRE) to the scene. The DRE is trained to look for signs that prove that someone is impaired from marijuana. These signs include dilated pupils, elevated pulse rate, elevated blood pressure, giving off the odor of marijuana, tremors, relaxed demeanor, dry mouth and short term memory impairment. If the DRE determines you are under the influence of marijuana, you will be arrested for suspicion of DUID, taken to the station, possibly subjected to a blood draw, and the DRE will testify to his conclusion at your trial.
What Are The Punishments For A DUI?
If you are convicted of driving under the influence of marijuana, there are a range of punishments you could incur. The severity of the punishment takes into account several things including the facts of the case, your criminal history, and even the county you were arrested in. For a first time DUI conviction, you could receive three to five years of probation (probation often includes drug testing), up to a year in jail (this almost never happens), fees and fines that can run to almost $2,300 (note that the fines increase periodically), a twelve-week DUI school and a 6-month suspension of your California driver’s license.
What To Do If You Are Pulled Over
If you are pulled over, and you believe the officer may suspect you of driving under the influence of marijuana, the best thing to do is remain calm, do not make any statements or admissions to the officer, and wait patiently until you are released from jail and given a court date to begin fighting your case. It is important to know that in California, you have ten days from the date of your DUI arrest to request a hearing before the DMV to determine whether your license should be suspended. If you do not request a hearing, your license will be suspended automatically.
Colorado and Washington, which both recently legalized weed, consider it a crime to operate a vehicle with 5 nanograms active THC per milliliter of blood or more, though in Colorado medical marijuana patients can fight the automatic DUI conviction. But until better and more scientific tests are developed, it is much more difficult for the authorities to tell (and to prove in court) whether a person is under the influence of weed than it is to tell if they are drunk. A good lawyer should be able to poke all kinds of holes in the prosecution’s evidence that you were driving under the influence of marijuana.
Whether its booze, weed, or DayQuil, stay off the road if you even think you may be too impaired to drive. On the road, don’t get pulled over in the first place. Observe all traffic laws and make sure all your vehicle lights work. A little window tint, or dice hanging from the mirror is a primary offense.
What I imagine is a lot of San Diego DUI cases that are a combination of marijuana and alcohol. I could easily see someone who has smoked weed and also will have a blood alcohol level of .03%. These cases will be very fact sensitive whether impairment can be established. In the meantime, be safe and use your best judgment. If you do get in trouble, hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation at (858) 751-4384 or send an email to [email protected]
Below is a recent article on Colorado’s “per se” DUI statutes
Marijuana DUI Bill Passes In Colorado Senate, Appears Poised To Become Law
A controversial measure which sets a THC-blood limit for Colorado motorists — a concept which has failed six times in the last three years in the state legislature —passed in the state Senate, Tuesday.
The Senate passed House Bill 1325 on a 24-11 vote and it now heads to Gov. John Hickenlooper who has said he supports a marijuana DUI framework for the state.
Under HB 1325, drivers caught with 5 nanograms of THC, the psychoactive ingredient in marijuana which produces the “high” sensation, in their blood would be considered too stoned to drive and could be ticketed similarly to a person who was considered too drunk to drive.
The bill, which was just introduced last week, is an exact copy of another bill which was killed by the Senate earlier this year. Also last week, an identical measure which had been amended to House Bill 1317, the recreational marijuana regulatory framework proposal, was stripped from the bill in Senate committee. But this newly introduced stand-alone version appears poised to now become law.
As in previous years when marijuana DUI bills have come up for debate, opponents say that the 5 nanogram standard is too low for frequent pot smokers, especially medical marijuana patients, who regularly have this level of THC in the bloodstream and therefore, if passed, these people would lose their driving privileges, The Denver Post reports.
But HB-1325 allows for a person who has been charged with having 5 nanograms of THC in their blood to rebut the charge that they are too impaired to drive.
“For example, if you did not exhibit poor driving, you can put that on as evidence to say, ‘Look my driving was not poor, I’m not unsafe to operate a motor vehicle,’” Rep. Mark Waller (R-Colorado Springs) said during earlier hearings of an identical bill which was killed.
All of the previous failed marijuana DUI bills were “per se” bills — meaning if a driver tested above the legal 5 nanogram limit, the result would be an automatic conviction nearly every time.
But are drivers measurably impaired while under the influence of marijuana like they clearly are when under the influence of alcohol? That has been one of the core questions opponents of the bill have been asking about bills like these each year they are introduced. Westword spoke to Attorney Leonard Frieling in 2012 over last year’s marijuana DUI bill who described the clear correlation between blood alcohol level and driving impairment — the higher the blood alcohol level, the more impaired drivers are. But he questions the correlation between marijuana blood levels and driving impairment saying to Westword, “that appears not to hold true as cleanly with cannabis. So talking about impaired driving is one thing, but trying to give a number a meaning it doesn’t have is something else entirely.”
Last year Sen. Pat Steadman (D-Denver) spoke out about the issues that make marijuana blood limits problematic like the fact that THC is fat-soluable, so blood limits could remain above the 5 nanogram limit for days after the user last legally smoked pot, CBS4 reported. The user would not appear stoned, but legally they could still be considered impaired.
With this thinking in mind, Steadman tried to exempt medical marijuana patients in the bill — as he’d done in years past — but ultimately failed, according to Fox31.
This fact of THC’s different effect on the body than alcohol’s was stunningly shown in 2011 by Westword pot reporter William Breathes. After a night of sleep and not smoking pot for 15 hours, a sober Breathes still tested nearly three times higher than the proposed legal limit.
To add confusion to the matter, Washington state television station KIRO recently assembled a group of volunteers, had them smoke pot and set them loose on a driving test course to try and answer the question: How high is too high to drive?
The less-than-scientific results, while entertaining, unfortunately don’t add much clarity to the question at hand. A regular smoker of marijuana tested above the legal limit to begin with, yet drove without much of a problem. Two casual smokers also navigated the course without incident. However, after smoking more marijuana, driving ability began to devolve quickly.
Washington state voters, along with voters in Colorado, passed recreational marijuana amendments last November, but Washington, unlike Colorado, already passed a marijuana DUI bill in 2012 setting the legal impairment standard at 5 nanograms in the state.
And in Washington, the enforcement of the law ultimately comes down to common sense. Explains Bob Calkins, a Washington State Patrol spokesman, to The Oregonian, “We don’t just pull people over and draw blood… If you’re driving OK, we’re not going pull you over. But driving impaired is still driving impaired.” Watch KIRO’s full stoned driving segment here.