Is the Smell of Marijuana Probable Cause for a DUI?

Although the police in California could easily arrest you for possession of marijuana a few decades ago, recreational use of marijuana by adults 21 years of age or older has been legal in the state since 2016, making arrests for marijuana-related offenses more complicated than it was in the past. Although possession of a small amount of marijuana now results in a ticket, there are still situations in which police might try to use the smell of marijuana as probable cause to conduct a search and seizure or investigate a possible DUI.

Police officers claiming they smell marijuana on a driver or coming from the vehicle used to be a frequently used tactic to aggressively charge drug-related crimes. Since marijuana was illegal, the smell of it gave officers a legal justification to initiate a search. But now that smoking marijuana for medical and recreational purposes is legal in California, the odor of marijuana no longer provides a solid case for probable cause since it is not necessarily a criminal act.

According to an appellate panel in Alameda County that ruled on a case involving an individual whose vehicle was stopped by police and searched because officers said they smelled marijuana, “Marijuana and alcohol now receive similar treatment under the law.”

Although a loaded handgun was found in the vehicle, the evidence was suppressed because the court ruled police conducted an unlawful search. The driver in the case was not driving erratically, passed a field sobriety test, and admitted to possessing less than an ounce of marijuana. Because marijuana is legal in California, the driver's only other violation was driving without a front license place, which is why the judge ruled that police lacked the necessary evidence to initiate the search.

However, it is important to note that if police believe a driver is under the influence of marijuana, they can charge them with a marijuana DUI. Although it is legal for drivers 21 and older to possess marijuana for medical or recreational use, it is still illegal to drive while you are under the influence of marijuana, alcohol, or other impairing substances.

While police can legally ask a DUI suspect to perform a sobriety test to determine if they are impaired, they cannot search the vehicle at this point of the interaction. If officers determine that the person is under the influence of marijuana, they can arrest them for DUI and then perform the search.

Lessem, Newstat & Tooson, LLP can assist if you have been arrested for a marijuana-related crime. Please call our reputable law firm today at (800) 462-7160 or contact us online to set up a free case review.