Driving Under Influence of Alcohol or Drugs (Marijuana Specific)
Under California Vehicle Code Section 23152, it is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. The district attorneys offices across the state of California regularly prosecute drivers for driving a vehicle under the influence of marijuana, although the impairment caused by marijuana is not agreed upon by many scientists across the world. NORML has reviewed the scientific evidence of marijuana culpability in on-road driving accidents (you can read the finding here).
In order to convict a driver under the VC 23152, the prosecution needs to prove all elements of the crime beyond a reasonable doubt. In cases where alcohol is involved, the prosecution often relies on a chemical/breath or blood tests. In cases of marijuana, the prosecution is faced with a more difficult talk of proving “the influence of marijuana” while driving. The active ingredient of marijuana is THC, which enters the body’s bloodstream rapidly after smoking marijuana. Unlike alcohol levels, marijuana stays in the bloodstream for only a short period of time, but it can be detected in a body even several weeks after ingestion. Although the detection of marijuana can be made by several test, the prosecutor needs to show that you were under the influence WHILE driving the vehicle. The fact that traces of marijuana are found in someone’s system weeks after the ingestion does not prove that the person was under influence during arrest.
The prosecution must follow the case precedent when it come to proving intoxication. “[T]o be guilty of driving while under the influence of drugs in violation of Vehicle Code section 23152, subdivision (a), ‘ “the … drug(s) must have so far affected the nervous system, the brain, or muscles [of the individual] as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties. [Citations.]” ’ [Citations.]” (People v. Canty (2004) 32 Cal.4th 1266, 1278.) It is not enough that the drug could impair an individual’s driving ability or that the person is under the influence to some detectible degree. Rather, the drug must actually impair the individual’s driving ability. (People v. Enriquez (1996) 42 Cal.App.4th 661, 665–666, 49 Cal.Rptr.2d 710.) People v. Torres, 173 Cal. App. 4th 977, 983, 93 Cal. Rptr. 3d 303, 307 (2009)
The prosecution will rely on police reports in order to prove that a person did not possess the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties. The prosecution will focus on physical appearance of the driver, driving pattern prior to the stop, field sobriety tests, and chemical test for marijuana.
There a number of arguments a reputable defense attorney should made on behalf of his/her client charged with marijuana DUI. First of all, the police must have a reasonable suspicion in order to stop a vehicle. The investigating officer must weigh the totality of the circumstances to determine whether sufficient objective facts exist to create reasonable suspicion that the driver is engaged in criminal activity. United States v. Arvizu, 534 U.S. 266 (2002). If the person was pulled over illegally, then the evidence found due to an illegal stop must be suppressed.
As previously noted, only a person who did not possess the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties can be convicted of a DUI. This means, that an argument should be made that an impairment in your case was insignificant. In fact, some studies suggest that drivers under the influence of marijuana are more careful on the road, especially when compared with those who use alcohol behind the wheel.
Additionally, your attorney should argue that there is not a reliable test for marijuana intoxication. Although tests that determine whether marijuana was ingested by a person exist, the toxicologists are still unable to precisely determine the time when the person ingested the drug. Time is a crucial element of the DUI because the prosecution needs to prove that a person was under the influence WHILE driving.
Driving while under the influence of marijuana CAN be a crime even if the marijuana is used for medical purposes. People v. Moret, 180 Cal. App. 4th 839, 869 (2009). This means a person with a medical marijuana card can still be convicted of driving under the influence of marijuana.
Also, a person in possession of marijuana while driving a car can be prosecuted for Health and Safety Code 11357, Possession of Marijuana, Possession of Marijuana for Sale | Health and Safety Code 11359 | HS 11359.
If you are facing charges of DUI of Marijuana in California call 619-357-6677. If you are facing Marijuana DUI in Nevada or Utah call 801-364-6474.
Please drive sober!
- Possession of a Controlled Substance in California | HS 11350 (a)
- Possession of a Controlled Substance with Intent to Sell | HS 11351
- Transportation for Sale of a Controlled Substance| HS 11352
- Possession of Marijuana | Health and Safety Code Section 11357 | HS 11357
- Marijuana Cultivation, Harvest, Plant | HS 11358
- Possession of Marijuana for Sale | Health and Safety Code 11359 | HS 11359
- Marijuana Sale, Giving Away, Transportation | California Health and Safety Code Section 11360 | HS 11360
- Possession of Drug Paraphernalia | California Health and Safety Code 11364 | HS 11364
- Manufacturing a Controlled Substance (Marijuana, Hash Oil, etc.) | HS 11379.6(a)
- Can a vehicle be searched by police officers if they smell marijuana outside of the vehicle?
- When can police stop and search my vehicle?
Delicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP. Anton Vialtsin Google+