Driving Under the Influence of Marijuana in California

Legalization is not a pass to drive stoned

The legalization of marijuana in California has made its use more common. But, as with alcohol, its legality does not make it acceptable or safe to operate a vehicle while impaired.

That said, unlike with alcohol, which can be measured by blood alcohol content (BAC), impairment from pot can be a pretty tricky thing to assess accurately, efficiently or even-handedly. There is no breathalyzer for THC (the intoxicant in marijuana) levels, and even if there was, the drug’s effects can vary on different people.

Under California law, there is no “per se” rule for impairment due to drugs similar to the 0.08 percent BAC in the case of alcohol. The law simply states that “it is unlawful for a person who is under the influence of any drug to drive a vehicle.” Consequently, a citing officer must assess the actual impairment of a driver.

“Under the Influence”

There are any number of circumstances under which a driver may come to be suspected of impaired due to marijuana, including a traffic stop for a moving violation, a stop at a DUI checkpoint, or a stop for a vehicle-related issue, such as a broken taillight. In any of these circumstances, a police officer may come to suspect the driver is under the influence from smelling or seeing pot or paraphernalia in the car, or from observing the driving patterns or appearance of the driver. Any of these can be considered evidence of impairment.

A citing officer may request assistance from an officer trained as a Drug Recognition Expert (DRE) to further assess a driver’s state. A DRE is trained to perform field sobriety tests and examine for specific signs of drug-related impairment. The written contemporaneous observations of a DRE can be used as evidence to support a drug-related DUI.

If arrested, the driver will be given a blood test to determine the presence and level of THC in their system. Under California’s implied consent law, you may not refuse to submit to being tested. Although, if you have a health-related reason why you can’t undergo a blood test, you may submit a urine sample. These test results will also be used as evidence that the driver was under the influence.

Disputing Presented Evidence

Because the presence of THC remains in your blood for as much as two days after smoking or consuming (and even longer in your urine), and there is no consensus as to what quantity would constitute impairment, the findings of a blood test don’t conclusively show that a driver was under the influence of the drug at the time they were driving.

If you’re arrested for DUI marijuana, having a reputable and experienced DUI defense attorney assist you in challenging the evidence of impairment can make a huge difference to the outcome of your case. An attorney can raise challenges as to:

  • The conclusiveness of any test-related data
  • The manner in which the test itself was conducted and its results handled
  • The appropriateness of the traffic stop
  • Other procedural issues related to your arrest and the evidence presented

Penalties for a DUI for pot are the same as a DUI for alcohol. If it’s your first offense, you may be fined $390, have your license suspended for six months, face up to six months in jail, and have to take three months of DUI school. For subsequent convictions, your penalties increase to over a year of prison time, and fines up to $5,000. 

If you'd like more general information about this area of the law, see our DUI/DWI law overview.

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