Author Archives: Jon Ibanez

California Assemblyman Proposes Marijuana Zero-Tolerance DUI Standard

We recently referred you to an American Bar Association Journal article in which Lawrence Taylor was interviewed about the difficulties of correlating traces of marijuana in the blood and intoxication. We also mentioned the use of zero-tolerance laws for marijuana by some states as a way to address issue. It seems that one California assemblyman looks to include California in that list of zero-tolerance states.

Currently, for a person to be convicted of a California marijuana DUI, it must be proven that they were “under the influence.” A person is under the influence when his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

Assemblyman Jim Frazier recently introduced AB 2500. The bill, if passed, would change California’s current DUI law making it unlawful for a person to drive with any detectable amount of marijuana in the system. The law also seeks to make it illegal to drive with any trace of any other controlled substance in the system.

The proposed language of the law would read:

“It is unlawful for a person to drive a vehicle if his or her blood contains any detectable amount of delta-9-tetrahydrocannabinol of marijuana or any other drug classified in Schedule I, II, III, or IV under the California Uniform Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).”

The legislature rejected a similar bill introduced last year by Senator Lou Correa. Rightly so. Let’s hope they do the same to AB 2500.

Delta-9-tetrahydrocannabinol (THC) can remain in a person’s blood for up to weeks and longer after marijuana use, and well beyond the point at which a person cannot safely operate a vehicle. That doesn’t matter to those who support the proposed law. It seems they would be okay with punishing perfectly sober drivers simply because they ingested marijuana at some point in the last several weeks.

Will the Officer Really have Me Recite the Alphabet Backwards?

(Please welcome guest blogger, Jon Ibanez!)

During conversations about field sobriety tests, I can’t even tell you how many times someone has said, “I can’t even recite the alphabet backwards while sober!” My response is that they’re right, which is why officers don’t usually ask a person to perform this task as a field sobriety test during a California DUI stop. But they can.

If the alphabet is used at all as a field sobriety test, the officer may ask a DUI suspect to recite the alphabet forward without singing. Or they may be asked to recite the alphabet forward with their eyes closed. The officer will then look for the presence of impairment indicators. These indicators include the following: Whether the DUI suspect improperly states the alphabet, whether the DUI suspect sways, opens their eyes, or needs to use his or her arms for balance.

Like other field sobriety tests, the alphabet is a divided attention test. This means that the test requires a DUI suspect to divide their attention between a mental task and a physical task.

The alphabet test is not often used because it is not endorsed by the National Traffic Safety Administration (NHTSA). This means that it is not supported by research and does not meet requirements for standardization. In other words, the alphabet test is so unreliable that the NHTSA refuses to endorse it.

Since the alphabet test is not endorsed by the NHTSA, there are no set guidelines for which an officer can administer it. Some officers may have a DUI suspect begin reciting the alphabet beginning on an arbitrary letter such as “J.” Other officers may have the DUI suspect stop at an arbitrary letter. And some may have the DUI suspect say the alphabet backwards!

Forget trying to say the alphabet backwards, the NHTSA has determined that the alphabet (forward) test fails to differentiate between drunk drivers and sober drivers.

Amongst other criticisms, the alphabet test does not account for people whose first language may not be English, people who may not have had to recite the alphabet since they were in grade school, or those who are illiterate.