Recreational sales of marijuana in California, including communities of Los Angeles and surrounding areas, have recently begun. With cannabis now legal and available for adults 21 and older, it is important for all residents and visitors to understand the laws in place in order to use marijuana responsibly and within the law. As we have discussed in a previous blog post, although possession of marijuana in California is typically not illegal, there are still ways you can find yourself in trouble with the law for a marijuana-related offense, especially when it comes to operating a motor vehicle.
Marijuana Crimes in California
In California, it is a crime to drive under the influence (DUI) of alcohol and / or drugs. This includes driving under the influence of marijuana. Despite having legalized marijuana for recreational purposes, California still regulates its use in ways similar to how it regulates alcohol. Unlike laws regarding alcohol and DUI, however, laws over marijuana DUIs have been a subject of much debate. That’s because there are a number of questions related to the way marijuana affects different people and their ability to drive, as well as how law enforcement can objectively determine when a motorist is “too high to drive.”
While research into marijuana and its impact on driving are ongoing, there exist laws that prohibit driving under the influence of marijuana – although those laws are a work in progress. Still, there are a few things you should know when it comes to marijuana DUI in California:
- No legal threshold – Many Californians are familiar with laws that make it a crime to drive under the influence of alcohol, and that the legal BAC limit is .08. Unlike those laws, there is no legal threshold for the amount of marijuana that can be in a driver’s system. Other states across the country have passed marijuana DUI laws using a certain threshold of active THC per milliliter of blood, but those laws have been criticized for not providing an objective indication of driver impairment, as tolerance, residual THC stored in the body, and other factors can affect blood test rests.
- When officers can make arrests – Because there is no law regarding a “per se” amount of marijuana in the bloodstream to establish impairment by marijuana, law enforcement officers have a great deal of discretion when determining whether or not to make an arrest. Chemical tests of blood or urine may show marijuana in your system, but they can’t establish how much you consumed, when you consumed cannabis, and whether it is currently affecting your ability to drive safely. As such, law enforcement officers will often gather other forms of evidence to support their suspicion that you are too impaired too drive, and justify an arrest. This may include your driving behavior, statements you make, visual signs, how you perform on field sobriety tests (if you choose to take them), and any presence of marijuana or paraphernalia in your vehicle. The smell of marijuana smoke and things like accessible smoking devices in a vehicle commonly lead to marijuana DUI arrests.
- Penalties – When arrested and charged with marijuana DUI, suspects face a number of serious penalties. In most cases, marijuana DUIs are misdemeanors punishable by fines, probation, possible terms of imprisonment in a county jail, and driver’s license suspension. Those penalties can be elevated if a driver has previous convictions, and may become felony DUI allegations if it is a fourth offense, or there are accidents that result in injury or death.
- Chemical tests – As mentioned above, chemical tests are not a reliable indication of marijuana impairment. However, because California has implied consent laws, meaning all drivers give their consent to a chemical test when requested by a law enforcement officer as part of an investigation, there are penalties associated with refusing a breath, blood, or urine test. While you have the right to refuse a preliminary breath test in the field, refusing a secondary chemical test can result in an automatic suspension of your driver’s license, among other penalties.
- Challenging evidence – Due to the difficulties of determining when a driver is legally considered “too high to drive,” there is opportunity to effectively challenge evidence against marijuana DUI suspects. This includes challenging the results of blood tests, which are not a reliable indication of marijuana impairment. Depending on the circumstances, defendants may also evaluate and challenge other evidence noted by law enforcement, including what they considered were visual signs of impairment. For example, bloodshot eyes are one indicator of marijuana intoxication, but many other factors can cause red eyes as well. Challenging law enforcement’s underlying reasons for pulling a vehicle over and their probable cause for conducting searches or making arrests are an important part of any defense strategy.
Marijuana DUI is a serious crime in California, and it can have long-term if not life-long consequences for those who are convicted. However, due to the unique nature of marijuana and current issues in accurately proving impairment, defendants charged with this offense have opportunities to raise effective challenges to the government’s case against them.
At Lessem, Newstat & Tooson, LLP, our criminal defense lawyers have decades of combined experience handling all types of DUI cases throughout Los Angeles and the surrounding areas of Southern California, including those involving marijuana DUI. If you wish to discuss a recent arrest and how our team may be able to help you, contact us for a free consultation.