It would not be a surprise to many if California was the next state to legalize recreational marijuana with Proposition 64. If approved, California would follow the heels of Alaska, Oregon, Washington, Colorado, and the District of Columbia. California is among five states to vote on the legalization of recreational marijuana this November 8^th. As the sixth largest economy in the world and an already existing thriving medical marijuana market, it is estimated that the marijuana industry could become a $6 billion industry by 2020.

In 2010, voters failed to pass Proposition 19, which would have legalized recreational marijuana, by a 53.5% majority of vote. So do California voters have the same sentiment six years later? Current polls show support for the passing of Proposition 64 by 60% or more, making it the initiative most likely to pass on the ballot.

Since Proposition 64 is likely to pass, it would be appropriate to discuss how it might affect California DUIs and California DUI law.

California Vehicle Code section 23152(e) makes it illegal to drive a vehicle while under the influence of drugs including marijuana. Unlike California’s DUI of alcohol law, there is no legal limit for marijuana, or more specifically, tetrahydrocannabinol (THC) the psychoactive component of marijuana. Therefore, a person can only be arrested and convicted of a marijuana DUI if the ingestion of marijuana impairs a person’s ability to drive a vehicle as a sober person would under similar circumstances.

To prove that a person is driving under the influence of marijuana, a prosecutor can use officer observations of driving patterns, observations during the traffic stop, performance on field sobriety tests, and the presence of THC in any blood test done.

Since “under the influence” is an extremely subjective standard, it is often very difficult to prosecute DUI of marijuana cases. This is especially true if the driver refused to perform the field sobriety tests and/or the officer did not observe driving that would be indicative of someone who is under the influence of marijuana.

If proposition 64 is passed, law makers could seek some sort of per se limit for how much THC can be in a person’s blood while driving. Several states have set a per se limit of five nanograms of THC per milliliter of blood. Colorado, has set a five nanogram per milliliter of blood limit to allow for the presumption that a person is “under the influence.” Unfortunately, current per se limits for THC, however, are an inaccurate measure of how impaired a person is.

Unlike alcohol, THC is fat soluble and remains in a user’s system long after they have ingested the marijuana, sometimes by several weeks. This creates the possibility of being arrested with five nanograms of THC in the system weeks after a person has smoked marijuana and well after the “high” is gone. Yet, because the THC is present, a person can either be arrested or, in Colorado, presumed to be under the influence.

In June of last year, Cannabix Technologies Inc., a Vancouver based company announced the testing of a prototype marijuana breathalyzer. The company says that the breathalyzer will be able to test whether a person has ingested alcohol within the past two hours. Although the machine will not test for a quantitative amount of THC, it will provide a timeframe for marijuana usage, which is a better indicator of impairment that nanograms of THC in a person’s blood.

In April of this year, the California state legislature awarded UCSD’s cannabis research center $1.8 million to study THC impairment and develop an accurate roadside test for marijuana impairment.

While an accurate test for marijuana impairment may be in the offing, nothing yet exists to provide lawmakers with the ability to create an accurate per se level. Until that happens, which may be before pot shops open up in January of 2018 if Proposition 64 is passed, law enforcement and prosecutors will have to continue to rely on California’s flimsy standard of “under the influence.”

While we’ve been on the topic of DUI of marijuana, it only seemed appropriate to talk about some of the legal defenses that may be raised with this charge.

Just like with a DUI of alcohol, the officer must have probable cause to believe that you are driving while under the influence before he or she can arrest you. The officer has probable cause when they have apparent and trustworthy facts that would lead a reasonably intelligent and prudent person to believe that the driver is driving under the influence. The information that officers use to “find” probable cause is poor driving, the smell of marijuana, blood shot watery eyes, slowed speech, poor performance on field sobriety tests, and admissions by drivers that they have ingested marijuana. Only after a lawful arrest must a driver submit to a chemical test. If an officer makes an unlawful arrest because they didn’t have probable cause, the results of a chemical test showing the presence of marijuana should be inadmissible.

This is precisely why I always advise my clients to not say anything to law enforcement and decline field sobriety tests. Not only is it your right to do so, it preserves the argument that the arrest was unlawful and therefore evidence of marijuana use from a chemical test is inadmissible.

While the defense of an unlawful arrest applies to both DUI of alcohol and DUI of marijuana, there are a few defenses that are unique to a DUI of marijuana.

Unlike alcohol, Delta-9-tetrahydrocannabinol (THC), the psychoactive component of marijuana stays is a user’s system long after ingestion. Therefore, a person can test positive for THC well after the person smoked marijuana and well after the person was intoxicated, sometimes as much as weeks afterwards.

There is a strong correlation between blood alcohol content and intoxication. In other words, law enforcement knows that if a person has, for example, a blood alcohol content of 0.12 percent, it is highly likely that the person is intoxicated and unfit to drive a vehicle. The correlation between THC and intoxication, on the other hand, is not as clear. THC is measured in nanograms per milliliter of blood. For example, Colorado, which have legalized recreational marijuana, has made it illegal to drive with 5 nanograms of THC per milliliter of blood. A person, however, can have 5 nanograms of THC per milliliter of blood in their system weeks after smoking marijuana and certainly well after the person is unfit to drive. Therefore, there is the defense that you are not driving under the influence of marijuana even though you may have THC in your system.

Should California approve the roadside test to determine whether a person has ingested marijuana “recently,” prosecutors still need to prove that the use of marijuana actually impaired a person’s ability to drive to secure a DUI of marijuana conviction. If the driver refuses field sobriety tests, there’s not much evidence, other than the driving pattern, that a person’s ability to drive was impaired. Therefore, another realistic defense is that the person’s driving was not impaired even though they had recently smoked marijuana.

In any event, hiring a qualified California DUI attorney is essential to be able to successfully assert any of the aforementioned legal defenses to a California DUI of marijuana charge. As you can see, they are quite complex and I’ve only scratched the surface.

As you’ve seen in the previous post, it may not be too much longer before we see roadside oral swabs to test for the presence of marijuana and other drugs in addition to the current breathalyzer which tests for alcohol. The push for legislation targeting driving under the influence of marijuana comes at a time when recreation marijuana use in California may be legal in the near future.

Whether that day comes or not, law enforcement agencies throughout California are already on the lookout for DUI of marijuana. And when people get stopped and arrested on suspicion of driving under the influence of marijuana, one of the most common questions is: What are the penalties for a California marijuana DUI?

The mandatory punishment for a California marijuana DUI is the same to that of a DUI of alcohol. In fact, both are covered under section 23536 of California Vehicle Code which states, “If a person is convicted of a first violation of Section 23152 (DUI law for alcohol and marijuana), that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, not more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1,000).”

In addition to the jail and fines mentioned above, the court will also place the person on informal probation for a period of at least 3 years, require a three, six, or nine month DUI education program and the DMV will suspend a person’s driving privileges for a period of six months for a first-time conviction. Second-time or more convictions will may bring an 18 month program and a longer DUI education program.

While these penalties are mandatory, there are other penalties which a judge may impose on a person who has been convicted of a DUI of marijuana. These penalties are the same as the discretionary terms of a DUI of alcohol sentence.

The judge may impose a Mothers Against Drunk Driving Victim Impact Panel which is a one-day lecture hosted by MADD where victims of DUI-related accidents speak about how driving under the influence has affected their lives.

A person might be ordered to complete a Hospital and Morgue Program. I think the name of this punishment speaks for itself.

A judge might order a person to complete a number of Narcotics Anonymous meetings as a condition or probation.

The penalties mentioned above apply even if the marijuana they had consumed was medical marijuana. The law against driving while under the influence of drugs, which is California Vehicle Code section 23152(3), prohibits driving while under the influence of illegal drugs as well as prescription drugs and medical marijuana.  

Lastly, it should be noted that it is also illegal to possess marijuana on your person or in your car under California’s Health and Safety Code and illegal to possess marijuana while driving under the California Vehicle Code. A conviction of either will add to any penalties received for a DUI of marijuana conviction. How much punishment, however, will depend on how much marijuana was in the person’s possession.

I’ve written here in past posts about the difficulties of trying to use a breathalyzer on a driver to determine whether he is under the influence of marijuana.  See Is It Possible to Prove Driving Under the Influence of Drugs?.   As a study authored by Dr. Jim Hedlund, formerly a senior official with the National Highway Traffic Safety Administration, has concluded:.

The relations between a drug’s presence in the body, its concentration, measured in blood, breath, saliva or urine, and its
impairing effects are complex and not understood well. A drug may be present at low levels without any impairing effects. Some
drugs or metabolites may remain in the body for days or weeks, long after any impairment has disappeared (Berning et al., 2015;
GAO, 2015).

In particular, marijuana metabolites can be detected in the body for weeks after use (Berning and Smither, 2014).
On the other hand, concentrations in the body of some drugs decrease rapidly while impairing effects persist. For marijuana,
THC concentrations fall to about 60% of their peak within 15 minutes after the end of smoking and to about 20% of their peak
30 minutes after the end of smoking while impairment lasts for 2 to 4 hours (Kelly-Baker, 2014; Logan, 2014).

In addition, individuals differ in how their bodies absorb and metabolize a drug. In experimental settings, wide ranges of drug
concentrations produce similar levels of impairment in different individuals (Berning et al., 2015). NHTSA’s observation is generally
accepted: “At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver
impairment” (Berning et al., 2015). GAO (2015) agrees: “identifying a link between impairment and drug concentrations in the body,
similar to the 0.08 BAC threshold established for alcohol, is complex and, according to officials from the Society of Forensic
Toxicologists, possibly infeasible.”

Will science and profit-hungry corporations ever be able to produce a breath-analyzing device that can accurately and reliably measure the amount of marijuana in a a driver’s blood?  Doubtful, but not for lack of trying.  The following is from a recent edition of Forensic magazine:

“At the same time that marijuana use is growing dramatically, law enforcement has been impeded by the lack of tools to help identify stoned drivers and get them off the road,” according to the company Hound Labs.

Now, the company is claiming they’ve created a technology capable of detecting THC (tetrahydrocannabinol) levels below 500 pg in a breathalyzer test.  According U.S. News & World Report, the technology will be tested early next year in clinical trials.

“Measuring marijuana is not a simple extension of the technology in current alcohol breathalyzers,” according to Hound Labs. “The approach used in an alcohol breathalyzer won’t detect THC molecules in lungs because THC requires a scientific method more than a million times more sensitive than one needed to measure alcohol. Until now, very large, expensive and specialized detection tools were needed to detect THC in breath.”  

The company’s CEO Mike Lynn said the law enforcement version of the product will sell for “well under a thousand dollars,” and the commercial consumer version will be even less, reports the U.S. News & World Report.

If true, this would be quite a break-though.  If true….
 

State laws currently criminalize driving a vehicle while "under the influence" of marijuana, just as they do for alcohol.  And as I’ve commented in past posts, the evidence that marijuana usage impairs the ability to safely operate a motor vehicle — that is, "drunk driving" — is essentially non-existent.  See Does Marijuana Affect Driving Ability? 

A recent study, in fact, has confirmed this. 

First of Its Kind Study Finds Virtually No Driving Impairment Under the Influence of Marijuana

The first study to analyze the effects of cannabis on driving performance found that it caused almost no impairment. The impairment that it did cause was similar to that observed under the influence of a legal alcohol limit.

Researchers at the University of Iowa’s National Advanced Driving Simulator carried out the study, sponsored by National Highway Traffic Safety Administration, National Institute of Drug Abuse, and the Office of National Drug Control Policy.

“Once in the simulator—a 1996 Malibu sedan mounted in a 24-feet diameter dome—the drivers were assessed on weaving within the lane, how often the car left the lane, and the speed of the weaving. Drivers with only alcohol in their systems showed impairment in all three areas while those strictly under the influence of vaporized cannabis only demonstrated problems weaving within the lane.  Drivers with blood concentrations of 13.1 ug/L THC, or delta-9-tetrahydrocannabinol, the active ingredient in marijuana, showed increased weaving that was similar to those with a .08 breath alcohol concentration, the legal limit in most states."

The article went on to point out that there is no accurate way of determining impairment by chemical testing (as I’ve pointed out in previous posts, such as California Proposes New Law to Allow Roadside Marijuana Test).

Another important finding should deter any attempts to deploy instant roadside tests for THC-blood levels.

The study also found that analyzing a driver’s oral fluids can detect recent use of marijuana but is not a reliable measure of impairment.

“Everyone wants a Breathalyzer which works for alcohol because alcohol is metabolized in the lungs,” says Andrew Spurgin, a postdoctoral research fellow with the UI College of Pharmacy. “But for cannabis this isn’t as simple due to THC’s metabolic and chemical properties.”

As usual in the DUI field, of course, law will always trump science.  See my posts DUI Laws Overrule Scientific Truth and How to Overcome Scientific Facts: Pass a Law.