Is there really such a thing as a marijuana DUI?
An attempt to answer this question with a definitive yes was made in California recently by creating a bill to pass a “per se” marijuana DUI law that is similar to the “per se” DUI where it is unlawful for a person to drive a motor vehicle with a BAC of .08% or higher. The “marijuana DUI bill” proposed, AB2500, would have made it unlawful for a person to drive with a specified level of THC in his or her system. This bill was ultimately defeated because THC is known to remain, and be detectable, in a person’s for system for days after use, with no “high” being experienced by the individual. So, does this mean you’re free and clear of a marijuana DUI? The short answer:No. A common misunderstanding of the current DUI laws in California is that the requirement for a DUI is a .08% or higher BAC, which is generally construed as exempting marijuana and other drugs; however, what many people don’t realize is that there is also what is known as the “a count,” or Vehicle Code §23152(a), which provides that a person who is driving a motor vehicle while under the influence of alcohol or drugs may also be charged with a DUI.
So while there may not currently be a “per se” marijuana DUI that is based on a specific level of THC similar to the “per se” DUI based upon a .08% or higher BAC, there is the DUI based on being under the influence of alcohol or drugs that can still lead to being charged with a misdemeanor or felony, depending on the circumstances.
CALCRIM 2110- The jury Instruction
The defendant is charged [in Count ______] with driving under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug].
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant drove a vehicle;
2. When (he/she) drove, the defendant was under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug].
A person is under the influence if, as a result of (drinking [or consuming] an alcoholic beverage/ [and/or] taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.
The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.
[An alcoholic beverage is a liquid or solid material intended to be consumed that contains ethanol. Ethanol is also known as ethyl alcohol, drinking alcohol, or alcohol. [An alcoholic beverage includes <insert type[s] of beverage[s] from Veh. Code, � 109 or Bus. & Prof. Code, � 23004, e.g., wine, beer>.]]
[A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.]
[If the People have proved beyond a reasonable doubt that the defendant’s blood alcohol level was 0.08 percent or more at the time of the chemical analysis, you may, but are not required to, conclude that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense.]
[In evaluating any test results in this case, you may consider whether or not the person administering the test or the agency maintaining the testing device followed the regulations of the California Department of Health Services.]
[It is not a defense that the defendant was legally entitled to use the drug.]
[If the defendant was under the influence of (an alcoholic beverage/ [and/or] a drug), then it is not a defense that something else also impaired (his/her) ability to drive.]
The court has a sua sponte duty to give this instruction defining the elements of the crime. Give this instruction if the defendant is charged with a misdemeanor or a felony based on prior convictions.
If the defendant is charged with one or more prior convictions for driving under the influence, the defendant may stipulate to the convictions. (People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].) In addition, either the defendant or the prosecution may move for a bifurcated trial. (People v. Calderon (1994) 9 Cal.4th 69, 77-78 [36 Cal.Rptr.2d 333, 885 P.2d 83]; People v. Cline (1998) 60 Cal.App.4th 1327, 1334-1336 [71 Cal.Rptr.2d 41]; People v. Weathington, supra, 231 Cal.App.3d at p. 90.) If the defendant does not stipulate and the court does not grant a bifurcated trial, give CALCRIM No. 2125, Driving Under the Influence or With 0.08 Percent Blood Alcohol: Prior Convictions. If the court grants a bifurcated trial, give CALCRIM No. 2126, Driving Under the Influence or With 0.08 Percent Blood Alcohol: Prior Convictions-Bifurcated Trial
Percent Blood Alcohol: Prior Convictions-Bifurcated Trial. If the defendant stipulates to the truth of the convictions, the prior convictions should not be disclosed to the jury unless the court admits them as otherwise relevant. (See People v. Hall (1998) 67 Cal.App.4th 128, 135 [78 Cal.Rptr.2d 809].)
The bracketed paragraph that begins with “If the People have proved beyond a reasonable doubt that the defendant’s blood alcohol level was 0.08 percent” explains a rebuttable presumption created by statute. (See Veh. Code, � 23610; Evid. Code, �� 600-607.) The California Supreme Court has held that a jury instruction phrased as a rebuttable presumption in a criminal case creates an unconstitutional mandatory presumption. (People v. Roder (1983) 33 Cal.3d 491, 497-505 [189 Cal.Rptr. 501, 658 P.2d 1302].) In accordance with Roder, the instructions have been written as permissive inferences. In addition, it is only appropriate to instruct the jury on a permissive inference if there is no evidence to contradict the inference. (Evid. Code, � 604.) If any evidence has been introduced to support the opposite factual finding, then the jury “shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” (Ibid.)
Therefore, the court must not give the bracketed paragraph that begins with “If the People have proved beyond a reasonable doubt that the defendant’s blood alcohol level was 0.08 percent” if there is evidence that the defendant’s blood alcohol level was below 0.08 percent at the time of the test. In addition, if the test falls within the range in which no presumption applies, 0.05 percent to just below 0.08 percent, do not give this bracketed sentence. (People v. Wood(1989) 207 Cal.App.3d Supp. 11, 15 [255 Cal.Rptr. 537].) The court should also consider whether there is sufficient evidence to establish that the test result exceeds the margin of error before giving this instruction for test results of 0.08 percent. (Compare People v. Campos(1982) 138 Cal.App.3d Supp. 1, 4-5 [188 Cal.Rptr. 366], with People v. Randolph (1989) 213 Cal.App.3d Supp. 1, 11 262 Cal.Rptr. 378].)
The statute also creates a rebuttable presumption that the defendant was not under the influence if his or her blood alcohol level was less than 0.05 percent. (People v. Gallardo (1994) 22 Cal.App.4th 489, 496 [27 Cal.Rptr.2d 502].) Depending on the facts of the case, the defendant may be entitled to a pinpoint instruction on this presumption. It is not error to refuse an instruction on this presumption if the prosecution’s theory is that the defendant was under the combined influence of drugs and alcohol.
(People v. Andersen (1994) 26 Cal.App.4th 1241, 1250 [32 Cal.Rptr.2d 442].)
If the evidence demonstrates that the person administering the test or agency maintaining the testing device failed to follow the title 17 regulations, give the bracketed sentence that begins with “In evaluating any test results in this case.” (People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190] [failure to follow regulations in administering breath test goes to weight, not admissibility, of the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854, 49 P.3d 203] [same]; People v. Esayian (2003) 112 Cal.App.4th 1031, 1039 [5 Cal.Rptr.3d 542] [results of blood test admissible even though phlebotomist who drew blood not authorized under title 17].)
Give the bracketed sentence stating that “it is not a defense that something else also impaired (his/her) ability to drive” if there is evidence of an additional source of impairment such as an epileptic seizure, inattention, or falling asleep.
On request, give CALCRIM No. 2241, Driver and Driving Defined.
CALCRIM No. 2111, Driving With 0.08 Percent Blood Alcohol.
CALCRIM No. 2125, Driving Under the Influence or With 0.08 Percent Blood Alcohol: Prior Convictions.
CALCRIM No. 2126, Driving Under the Influence or With 0.08 Percent Blood Alcohol: Prior Convictions-Bifurcated Trial.
Elements. Veh. Code, � 23152(a).
Alcoholic Beverage Defined. Veh. Code, � 109; Bus. & Prof. Code, � 23004.
Drug Defined. Veh. Code, � 312.
Driving. Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768 [280 Cal.Rptr. 745, 809 P.2d 404].
Presumptions. Veh. Code, � 23610; Evid. Code, � 607; People v. Milham (1984) 159 Cal.App.3d 487, 503-505 [205 Cal.Rptr. 688].
Mandatory Presumption Unconstitutional Unless Instructed as Permissive Inference. People v. Roder (1983) 33 Cal.3d 491, 497-505 [189 Cal.Rptr. 501, 658 P.2d 1302].
Under the Influence Defined. People v. Schoonover (1970) 5 Cal.App.3d 101, 105-107 [85 Cal.Rptr. 69; People v. Enriquez (1996) 42 Cal.App.4th 661, 665-666 [49 Cal.Rptr.2d 710].
Manner of Driving. People v. Weathington (1991) 231 Cal.App.3d 69, 84 [252 Cal.Rptr. 170]; People v. McGrath (1928) 94 Cal.App. 520, 524 [271 P. 549].
Legal Entitlement to Use Drug Not a Defense. Veh. Code, � 23630.
Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [252 Cal.Rptr. 170].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, �� 205-210.
2 Witkin, California Evidence (3d ed. 2003) Demonstrative Evidence, � 54.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, � 145.02 (Matthew Bender).
Lesser Included Offenses
If the defendant is charged with felony driving under the influence based on prior convictions, then the misdemeanor offense is a lesser included offense. The court must provide the jury with a verdict form on which the jury will indicate if the prior convictions have been proved. If the jury finds that the prior convictions have not been proved, then the offense should be set at a misdemeanor.
Attempted Driving Under the Influence. Pen. Code, � 664; Veh. Code, � 23152(a); People v. Garcia (1989) 214 Cal.App.3d Supp.1, 3-4 [262 Cal.Rptr. 915].
“[S]ection 23152 requires proof of volitional movement of a vehicle.” (Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768 [280 Cal.Rptr. 745, 809 P.2d 404].) However, the movement may be slight. (Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1029 [229 Cal.Rptr. 310]; Henslee v. Dept. of Motor Vehicles (1985) 168 Cal.App.3d 445, 450-453 [214 Cal.Rptr. 249].) Further, driving may be established through circumstantial evidence. (Mercer, supra, 53 Cal.3d at p. 770; People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 9 [222 Cal.Rptr. 540] [sufficient evidence of driving where the vehicle was parked on the freeway, over a mile from the on-ramp, and the defendant, the sole occupant of the vehicle, was found in the driver’s seat with the vehicle’s engine running].) See CALCRIM No. 2241, Driver and Driving Defined.
PAS Test Results
The results of a preliminary alcohol screening (PAS) test “are admissible upon a showing of either compliance with title 17 or the foundational elements of (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator . . . .” (People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854, 49 P.3d 203].)
Presumption Arising From Test Results-Timing
Unlike the statute on driving with a blood alcohol level of 0.08 percent or more, the statute permitting the jury to presume that the defendant was under the influence if he or she had a blood alcohol level of 0.08 percent or more does not contain a time limit for administering the test. (Veh. Code, � 23610; People v. Schrieber (1975) 45 Cal.App.3d 917, 922 [119 Cal.Rptr. 812].) However, the court in Schrieber, supra, noted that the mandatory testing statute provides that “the test must be incidental to both the offense and to the arrest and . . . no substantial time [should] elapse . . . between the offense and the arrest.”
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