Vehicle Code 23152(f)
Driving Under the Influence of Marijuana
As of January 1, 2018, smoking marijuana recreationally is totally legal in the state of California. Prior to this date, it was legal to smoke marijuana only for medical purposes and it required a prescription from a doctor. However, even though smoking marijuana is now legal, smoking marijuana and driving will subject you to be arresting for driving under the influence of marijuana.
Vehicle Code Section 23152(f) states that:
“It is unlawful for a person who is under the influence of any drug to drive a vehicle.”
This means we can expect many more arrests for DUI marijuana. However, interpreting this statute is much more complicated than it seems.
How Does it Differ from a Regular DUI?
The traditional DUI statute involving alcohol, VC 23152(a), also makes it a crime to drive while under the influence of any alcoholic beverage. However, unlike the DUI drug law, VC 23152(a) is supplemented by VC 23152(b) which makes it a crime to drive with a Blood Alcohol Content (BAC) of over .08.
VC 23152(a) and 23152(b) are almost always charged together which really takes the subjectivity out of it.
Under VC 23152(b), the police can simply test the alcohol in your blood via a blood, breathe, or urine test and determine the percentage of alcohol in your blood. These machines are very accurate and so it helps the prosecution get their guilty conviction.
Prosecuting DUI Marijauna, VC 23152(f)
Not so fast with DUI Marijuana. Unlike alcohol, which burns off out of your system within a matter of hours, THC, the active agent in Marijuana which causes impairment, can build up in your body, and be stored in your fat cells, so a test based on levels of THC in your system would not accurately determine if you are impaired, since you may have smoked the marijuana several days, or even weeks, ago.
So, let’s say California sets up a 5 nanograms of THC per milliliter of blood standard, there’s no way the police can decide if that 5 nanograms came from a recent ingestion of marijuana, or whether it’s something that was build up from the past.
In other words, there is no marijuana equivalent to an alcohol breathalyzer. Some blood tests have been created which can detect the indicia of marijuana use. However, there is no universally accepted standard in the amount of THC or other compound in marijuana which causes impairment. Unlike the DUI, alcohol cases which have done numerous peer-reviewed studies about what level of intoxication causes impairment, and the precise ways they do so, no such extensive literature exists for marijuana.
Defending DUI Marijauna, VC 23152(f)
All of this means for the time being, that in a DUI Marijuana case, the evidence will be based primarily on the officer’s subjective observations- the size of the pupils, the field sobriety tests (link), and other very subjective and disputable observations by the officers. That’s good news for anyone charged with this crime. To be found guilty of any crime, such as DUI Marijuana, proof beyond a reasonable doubt (BARD) is required.
Absent some objective chemical blood or breathe tests, the subjective observations of an officer will probably not be enough to convince a jury by the very high BARD standard, and this means you can win your case.
What to do During a DUI Arrest?
As with all DUI’s, it’s still important to follow the following rules of thumbs when it comes to Marijuana DUI:
- Kindly refuse to perform the Field Sobriety Tests (FST’s). There is no punishment for performing these tests and usually the police bend over backwards to find that you have failed, or at least have made big missteps, on your field sobriety tests. You also don’t get any brownie points for being cooperative. By completing FST’s you would only be putting another nail in the the coffin. There’s absolutely no reason to do them- JUST SAY NO! FSTS’s include the preliminary alcohol screening (PAS) test at the scene of the stop (though not at the station), the cop holding up a pen and asking you to follow it with your eyes, walking in a straight line with your heal touching your foot, standing on one foot and touching your nose, counting to 30 seconds in your head, and a lot of other bizarre, non-sensical and pretzel-disfiguring moves designed to make you look guilty.
- Don’t fail to give a breath or blood test at the station. Even though you can refuse to do the Preliminary alcohol screening (PAS) test at the scene, at the station you will probably be asked to give a breath or blood test. Refusing to give this test would be at the risk of a 2 year suspension of your license (which you can get restricted to and from work after a one year passes). So it might help your case to not have a breathalyzer at the scene of the incident, but you end up pleading guilty or losing at trial, it will cost you your license for a while.
- It’s always a good idea to make sure you are in compliance with all of the laws on the road, including dmv compliance. The police cannot legally pull you over unless they have a reason to, i.e. expired registration tags, failure to signal, speeding, excessively tinted windows, having your license plates on, etc. By keeping in compliance with the roadway laws, you minimize the changes than the police will police you over in the first place, only to discover you are under the influence. If the police pulls you over because they are guessing you are driving under the influence, or because they are profiling you, you can get your case thrown out!
- The anxiety of getting pulled over is something police officers count on. In this kind of situation, people are far more likely to incriminate themselves. You do have to give your name, license and registration to the police officer. But if the officer asks you if you’ve been drinking, or how much—and you’re concerned that you might incriminate yourself—simply say, “I’m sorry, officer, but I’ve been advised not to answer any questions.”
- Exercise your right to remain silent so you don’t incriminate yourself. You don’t have to answer any questions from the police. For instance, if you’ve been asked if you’ve been drinking, you can simply say, “Excuse me for saying so officer, but I’ve been advised not to answer any questions.” You do have to provide your license, registration and proof of insurance if asked to do so. The anxiety of getting pulled over is something police officers count on.
- Make a demand with the DMV. You have 10 days after being arrested to make a demand with the DMV for an APS hearing- otherwise your license will be automatically suspended.
- Don’t get shot! This is only a bit tongue-in-cheek, but the reality is don’t make any furtive or sudden movements, keep your hands on the steering wheel in clear view, and don’t do anything that might freak out a trigger-happy cop.
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