Marijuana DUI Attorney
California Vehicle Code Section 23152 criminalizes operating a motor vehicle while under the influence of alcohol or any intoxicating drug, including the drug marijuana. VC 23152a addresses alcoholic intoxication specifically and requires a BAC level of .08%, but VC 2352e, which specifically covers marijuana DUIs, does not specify a THC (Tetra-Hydro-Cannabinol) level. This is because, although THC causes most of marijuana’s intoxicating effects, it is hotly debated how much THC in the blood stream sufficiently debilitates a driver to the point of significantly impairing his driving abilities.
The Elements of the DUI Crime
While driving under the influence of marijuana is somewhat difficult to prove in court, the elements of the crime are easy to outline- they are only two:
- The defendant was driving a motor vehicle. This is generally an easy point to establish, but if the police officer did not actually see the accused in the act of driving, he cannot legally make a DUI arrest.
- The defendant was under the influence of the drug marijuana. When one’s physical and/or mental ability is negatively affected to the point that the vehicle can no longer be operated with the caution a sober individual would be expected to exercise in a similar situation, that person’s driving is considered to be “impaired.”
Possible Penalties for a Marijuana DUI
For an unaggravated, first-time offense, a marijuana DUI is punished the same as any other DUI. It is usually a misdemeanor, and the penalties include:
- Summary probation for 3 to 5 years
- From 4 days to 6 months in county jail
- A fine that ranges from $390 to $1,000
- A driver’s license suspension of 6 months
- A 3-month mandatory DUI course
If, however, death or serious bodily injury is caused by the marijuana DUI, or if someone convicted of a marijuana DUI already had 3 DUIs or wet reckless driving conviction in the last 10 years, the charge will likely be increased to “felony DUI marijuana.” The penalties would then be:
- A state prison term, the length varying with the circumstances
- A driver’s license suspension of 12 months
If, after being arrested, you refuse to submit to a DUI chemical test, the following additional penalties apply:
- Two additional days in county jail
- A one-year instead of six-month license suspension
- A nine-month instead of three-month DUI course
What to Expect From the Prosecution
The two elements of the crime of DUI marijuana are simply that you were driving the vehicle and that you were under the intoxicating influence of marijuana to the point of your driving being impaired. It is normally only the second element that creates a challenge for prosecutors. Since there is not per se THC level to correspond to the .08% BAC of per se alcohol DUIs, testing positive to THC is the main evidence of intoxication. These tests are not always very reliable at present, however, and they cannot establish how much or how recently you used marijuana.
Besides the chemical test the police took, however, the prosecutor will also used evidences such as the following to attempt to convict you:
- A failed Field Sobriety Test
- Erratic driving patterns
- A disheveled physical appearance
- Marijuana being discovered in your car
- Marijuana paraphernalia in your car
- A history of marijuana addiction
If the arresting officer called in a Drug Recognition Expert to the arrest scene, the DRE may testify any of the following observations against you:
- Your pupils were dilated and your eyes were red
- Your breathing and heart beat were rapid
- You had “cottonmouth”
- Your reaction time was sluggish
- The smell of marijuana was detected on you
Common Defenses Against DUI Marijuana
Any defense strategy used in other DUI cases can be used for a marijuana DUI as well, including such things as lack of probable cause, illegal arrest, failure to read the Miranda Rights, and failure to adhere to California Title 17 when administering a chemical test. Below, however, we will highlight some defenses that are more unique to DUI marijuana cases:
- You never used marijuana. While THC is unique enough that a mistaken positive reading is unlikely, it can happen. Using a proton pump inhibitor, such as are used to treat gastro-intestinal reflux disease, for example, can throw off the results of the chemical test.
- You use marijuana, but you were not intoxicated while driving. Since you can test positive to a chemical test 12 hours after using marijuana, days later for frequent pot smokers, and weeks later with urine tests, this is a possible defense.
- Despite some marijuana being in your system, your driving was not impaired. The prosecution must prove not the mere presence of nor a particular amount of marijuana in your system, but that its presence prevented you from driving safely. Even the experts disagree on how much THC it takes to impair driving, so prosecutors can’t always prove the point.
Two invalid defenses that people sometimes wrongly suppose can be used are:
- It was medical marijuana. As VC 23152e applies to both legal and illegal drugs, provided only they be intoxicating, it is no valid defense against a marijuana DUI that you used marijuana legally in accordance with state of California medical marijuana legislation.
- My driving impairment was only partially caused by the marijuana. In California, even if use of marijuana only partially impaired your driving, and something else contributed the remainder of the impairment, you are still guilty of DUI marijuana.
Two offenses related to DUI marijuana that often are involved in such cases are:
- Unlawful possession of marijuana: This charge is covered in Health and Safety Code Section 11357b and regards possession for personal consumption only. Possession of one ounce or less is a mere infraction that can get you a $100 fine, but possession of more than an ounce is a misdemeanor that can bring 6 months’ jail time and a $500 fine.
- Possession of marijuana while driving: This is addressed separately in Vehicle Code Section 23222, and is punished the same as #1 above- except that you can also be charged with transport of marijuana under HSC 11360 if convicted of driving with more than one ounce of pot.
If you are facing charges of driving under the influence of marijuana, it is crucial to secure experienced, specialized defense representation as soon as possible. Attorney Ross Howell Sobel handles many marijuana DUI cases and often gets them dismissed or reduced to lesser charges. He serves the whole San Fernando Valley and surrounding areas in California. Contact him for help by calling 310-788-8995, and he will waste no time in attending to your needs.