Category Archives: Drugged Driving

WHAT IS A BLOOD SPLIT MOTION?

California implied consent laws require drivers to submit to a chemical test of their blood or breath to determine blood alcohol content. The law applies to individuals lawfully arrested for driving under the influence. If a blood or breath test is unavailable, the law presumes the person consented to a urine test. 

Failing to submit to a chemical test after a DUI arrest in California results in an administrative 1-year driver’s license suspension by the California Department of Motor Vehicles. A second offense of failing to submit to a chemical test after DUI arrest is a two-year revocation of driving privileges. 

Law enforcement officers often give evidentiary breathalyzer tests at the police station. Breath testing in this manner is admissible as evidence in court. However, the officer may also take a blood sample to determine the person’s Blood Alcohol Concentration (BAC) level. It can be more difficult for a defendant to challenge the results of a blood test, but it is possible with independent tests. 

A police officer cannot force you to take a blood test unless the court issues an order requiring the blood test. However, the penalties for refusing to submit to a chemical test would apply even if the court ordered the person to submit to the blood test. 

What Is a Blood Split in a California DUI Case?

A police officer may give a person a choice between a breathalyzer test or a blood test after a DUI arrest. Many people choose a breathalyzer over a blood test after being arrested for drunk driving. However, there are times when a blood test is required. 

Blood tests after a DUI arrest are required when:

  • The driver cannot complete a breathalyzer test because of a medical condition or physical impairment
  • The officer suspects that the person is driving under the influence of drugs
  • An evidentiary breathalyzer is not available for use

Title 17 of the California Code of Regulations (17 CCR §1219.1) explains blood collection and retention for compliance with California Vehicle Code §23158. It directs that the person collecting the blood sample to collect enough blood for multiple tests. The second sample is preserved and turned over to the driver upon request for independent testing. 

How Does a Defendant Obtain a Blood Test Sample After a DUI Arrest?

The person’s DUI defense attorney generally requests that the prosecution provide a portion of the blood sample for independent testing. Generally, the state agrees to provide the sample to the DUI attorney. However, if the prosecutor refuses or fails to comply with the request within 15 days, the DUI defense lawyer files a motion with the court.

The “blood split motion” requests the court to order the prosecutor to produce a sample of the defendant’s blood for independent testing. The court may also sanction the prosecutor for failing to provide the sample to the defendant. Sanctions could include preventing the use of the chemical test results at trial and contempt proceedings against the prosecutor.

After having the blood tested, you do not have to use the results at trial. If the results favor the prosecution, you do not have to disclose that information to the prosecution. However, if the independent testing of the blood sample returns results that help your case, you may include that evidence as you defend yourself against DUI charges during the trial.

How Can a Blood Split Motion Help Your DUI Defense?

Under California Vehicle Code §23152, you can be charged with drunk driving if:

  • You operate a motor vehicle with a blood alcohol content of .08% or more; OR,
  • You drive a vehicle under the influence of any alcoholic beverage

Experienced California DUI lawyers use the results of independent blood tests to fight drunk driving offenses under both situations. 

Fighting a California Per Se DUI Case 

California “per se” DUI cases rest on the fact that the person’s BAC was above the legal limit of .08%. The prosecution uses the evidentiary blood test to prove that you had a BAC greater than the legal limit at the time of your arrest. The law presumes that you were too intoxicated to operate a motor vehicle if your BAC was above the limit. 

It is important to remember that the legal limit for a drunk driver may be lower for specific drivers. For example, the legal limit for commercial truck drivers is a BAC of .04% or higher. Underage DUI (driving under the age of 21 years) has a legal BAC limit of .05% or higher. Ride-share, taxi, and limo drivers have a legal limit of .04% or higher.

If the independent test reveals a BAC of below the legal limit, the defense can argue that the driver was not impaired at the time of the DUI traffic stop. The argument can create reasonable doubt, which might be sufficient for a jury to find the defendant not guilty.

Fighting Charges of Driving Under the Influence of Alcohol or Drugs

The other DUI offense relies on the prosecution proving that the alcohol in your system impaired your ability to operate a motor vehicle safely. If the charge is DUID (driving under the influence of drugs), the prosecution must prove that the drugs in your system impaired your driving abilities. 

Experts disagree on what levels of alcohol or drugs impair a person’s ability to drive a vehicle. Because each person’s physiology is different, it may take more or less of a substance to impair your ability to drive than it would another person.

Defendants use the results of an independent blood test with the totality of the evidence to argue they were not impaired while driving. 

For example, the only legal evidence is the police officer’s testimony that he smelled alcohol and the person “appeared” drunk because the driver refused to take the field sobriety tests. A blood split motion resulted in a low BAC level on an independent test. Along with expert testimony, there could be sufficient doubt for the jurors to find the defendant not guilty.

If the defendant is facing DUID charges, an independent test can be helpful for the defense. There is no “legal limit” for the amount of drugs in a person’s system to presume they are impaired. Therefore, it is more difficult for the state to win its case if the only evidence of drugged driving is a blood test that the defense refutes through independent testing. 

Challenging the Collection Methods of a Blood Test for a DUI Charge

Title 17 clearly defines how blood samples are to be collected in a DUI case. The procedures law enforcement officers must follow to collect blood samples after a DUI arrest include:

  • A medical professional or authorized technician must collect blood
  • The sample must be collected as soon as possible after the arrest
  • A sufficient sample must be collected to allow for testing by the state and by the defendant (i.e., blood split)
  • The vial must have sufficient preservative and anticoagulant
  • The blood cannot be contaminated with other substances 

A DUI defense may include challenging the results of a DUI blood test because the officers failed to follow Title 17 procedures when collecting or preserving the blood samples. 

Can You Split a Breath Sample or Urine Sample for a DUI Case?

You cannot split breath samples. Therefore, there is no way you can refute the results of a breath test except to challenge the circumstances surrounding the breathalyzer test. 

For example, you could argue that the breathalyzer malfunctioned or was not calibrated correctly. In addition, you could offer evidence that the police officer was not trained or performed the breathalyzer incorrectly. Also, you could argue that a medical condition or other factor caused a false BAC reading from the breath test.

However, urine samples can be split for independent testing. Title 17 has similar requirements for collecting urine samples after a DUI arrest:

  • The urine sample must be large enough to allow for at least two tests
  • The urine sample must be retained for up to one year after collection to allow for independent testing by the defendant 

Urine tests are not standard in DUI cases. Instead, most defendants are required to take breath or blood tests. Urine tests are only used when the other two tests are not possible. 

Fighting Chemical Tests After a California DUI Arrest

Independent lab results could show that blood tests performed after a DUI arrest were incorrect. Your test could result in a BAC lower than the legal limit or the limit found by the police lab. In some cases, the independent lab may find that the blood sample had been contaminated or fermented, invalidating the results. Samples that were mishandled or not refrigerated properly could also provide incorrect BAC results. 

Working with an experienced California DUI defense lawyer is the best way to attack the results of a chemical test after a DUI arrest. An attorney examines all evidence gathered by the state to determine what challenges would be helpful in your defense. Never assume that a blood test or breathalyzer result means a guilty verdict until you discuss your case with an attorney.

The 1650 Waiver to Attend DUI School Out-of-State

If you live in another state and get a DUI in California, you might find it inconvenient to have to attend an in-person California DUI school as a part of your sentence. Ordinarily, the California Department of Motor Vehicles (DMV) requires people convicted of DUIs to enroll in and complete DUI driving school here in California. 

A non-resident can request a waiver of the California in-person DUI school requirement by filing a 1650 waiver request. If you do not attend and complete an in-person DUI program in California and do not request and receive a waiver, your home state can deny you a driver’s license. Your only option then is to make repeated trips back to California to complete the DUI school.

How to Request a 1650 Waiver

You will have to wait until you are eligible to request that the California DMV terminate your DUI suspension or revocation. If the California DMV grants your request, you would not have to attend driving school in this state, and you will be able to apply for a license in your state of residence.

You must meet all of these conditions to be eligible for a termination of action as a non-resident:

  • Any suspension or revocation of your driving privilege is no longer in effect.
  • If you had any Administrative Per Se restrictions on your driver’s license, all such restrictions are no longer in effect.
  • You are no longer ordered by the court or the California DMV to have an ignition interlock device (IID) or any other court-ordered or DMV-ordered restrictions.
  • You have paid all applicable administrative service fees. 

You can check your driver’s record to verify these factors. You may request this information by telephone, online, or by regular US mail. After verifying that you have met all of the conditions, you will need to file an application for termination of action (DL4006) with the DMV, along with acceptable proof of out-of-state residency, payment of fees, and proof of financial responsibility, if required.

Application for Termination of Action (DL 4006)

The Application for Termination of Action must get sent to the Mandatory Actions Unit of the California Department of Motor Vehicles (DMV), with all the required documents and attachments. Before the termination of action under California Vehicle Code (CVC) section 13353.5 can happen, the Mandatory Actions Unit must verify that the applicant has met all of the conditions and requirements.

The applicant must swear under penalty of perjury that the individual is not a resident of California. Also, the applicant must voluntarily authorize the California DMV to cancel the individual’s California driving privileges if the DMV terminates the suspension or revocation as requested. It usually takes the California DMV a month or two to process the waiver packet.

Documents the DMV Will Accept as Proof of Out-of-State Residency

The DMV provides a list of 18 different kinds of documents they will accept to prove that you do not live in the state of California. You must submit at least one of these papers with your DL 4006 form. 

A few examples of the acceptable out-of-state residency documents for the 1650 waiver form (DL 4006 form) include:

  • A home utility or cell phone bill
  • Official voter registration documents
  • A mortgage bill
  • A rental or lease agreement signed by both the owner/landlord and the tenant/resident
  • An employment document
  • A property tax bill or statement
  • A change of address confirmation by the US Postal Service 

Whichever document or documents you choose to submit to show out-of-state residency must show your current out-of-state address that is the same as you provide on your DL 4006 form. 

What is Proof of Financial Responsibility?

Proof of financial responsibility in the context of driving means that a driver has automobile insurance that will pay the losses of people who get injured or property that gets damaged as a result of the driver. California tries to protect the general public from people exercising the privilege to drive without being financially responsible to people they might harm.

The DMV might require you to provide a California Insurance Proof Certificate (SR 22) from an insurance company authorized to do business in California. If your insurance is from a company not authorized to do business in California, the DMV will only accept that insurance document if you send in a Declaration Regarding Certificate of Insurance for Non-Resident Driver. That declaration is on the DL 300 form, California Proof Requirements for Non-Residents.

Who Needs a 1650 Waiver?

If you were a non-California resident and you got convicted of a “wet” driving offense, like:

  • Driving under the influence, Vehicle Code 23152(a),
  • Driving with a BAC of 0.08% or higher, Vehicle Code 23152(b)
  • Underage DUI with a BAC of 0.05% or higher, Vehicle Code 23140
  • “Wet reckless,” Vehicle Code 23103.5

You will have to enroll in and complete an in-person California DUI driving school unless you get a 1650 waiver of that requirement. A 1650 waiver comes with significant consequences. For starters, once you use a 1650 waiver, you can never get a second waiver in your entire lifetime. 

Also, you will not be allowed to drive in the state of California for three years, even if you become a California resident. If you do move to California, you will have to complete the DUI school before the DMV will issue you a California driver’s license.

Consequences in Your Home State

Getting an out-of-state DUI conviction does not let you fly under the radar in your home state. The California court will notify a non-resident’s home state of the conviction. Also, the DMV in California will suspend your California non-resident driving privileges.

You can face negative repercussions in both states, California and your home state, after getting convicted of a DUI here. Your state will treat the California conviction as if it happened in your home state. 

Your home state is allowed to impose its own penalties on you, even if they are more severe than the penalties the California court assessed. Typically, your home state will not allow you to drive legally using that state’s driver’s license until you satisfy all of the penalties of the California conviction, which include the DUI program requirements of the DMV. One of the program requirements is the California DUI school.

Can I Attend a California DUI School Online?

Generally, no. A person convicted of a DUI in California must attend a licensed DUI program unless the individual obtains a 1650 non-resident waiver. The Department of Health Care Services (DHCS) evaluates, licenses, and monitors the compliance of all California DUI programs. The Behavioral Health Licensing and Certification Division, Driving-Under-The-Influence (DUI) Section is the specific aspect of the DHCS that performs these tasks.

You cannot simply enroll in any DUI school or program. The DUI school must be California-licensed to satisfy the penalties under your conviction. DUI school hopes to give participants an opportunity to address their problems with using alcohol and drugs, and to reduce the number of second and subsequent DUI offenses by individuals. 

California DUI Programs

There are multiple levels of DHCS licensed DUI programs. For example:

  • If you get convicted of reckless driving and you had a measurable amount of alcohol in your bloodstream, you must complete the “wet reckless program,” which is a 12-hour DUI education program.
  • For a first-offense DUI conviction, the DMV requires the completion of a three-month 30-hour alcohol and drug education and counseling program. If the first offense was for a blood alcohol content of 0.20% or higher, the individual must complete a nine-month 60-hour alcohol and drug education and counseling program.
  • If a person gets a second or subsequent DUI conviction, there is a mandatory 18-month multiple offender program. The program includes 52 hours of group counseling, 12 hours of alcohol and drug education, six hours of community reentry monitoring, and biweekly individual interviews during the 12 months of the program.
  • For a third or subsequent DUI conviction, a county may choose to impose 30-month DUI programs, with 78 hours of group counseling, 12 hours of alcohol and drug education, 120 to 300 hours of community service, and close and regular individual interviews.

The high level of involvement and time required by California DUI programs make it difficult for someone who lives in another state to participate in and complete the program requirements.

COVID-19 FAQs for DUI School

During the COVID-19 pandemic, the state of California enacted measures to reduce exposure to the virus, including suspending or limiting DUI program services. Anyone participating in program services or wanting to enroll in the program could find limitations on the program due to COVID-19 restrictions. The DHCS supported telehealth services for DUI programs to minimize the spread of COVID-19.

Are There Additional Penalties for a DUI Conviction in California?

Yes, and you do not get to avoid these consequences just because you are not a California resident. Also, keep in mind that your home state can impose additional penalties. In California, a first-time DUI conviction could include these penalties:

  • DUI school
  • A six-month driver’s license suspension period
  • Up to six months in county jail
  • Installation of an ignition interlock device (IID) for six months
  • Fines and penalties adding up to as much as $1500 or $2000
  • DUI probation of 3 to 5 years
  • Work release

Getting a DUI conviction can impact your life in many other ways. You will want to work with a California DUI attorney to protect your rights if you get arrested for drunk driving.

Penalties for Second-Time DUI Convictions in California

If you have been convicted of a DUI charge in the past, then you know how difficult it can be to get your life back on track after being arrested. One of the most important things people want to know when facing second-time DUI charges is what kind of penalties they will face if convicted again. This guide provides information about the consequences of California DUI convictions and how long these penalties last. 

California DUI penalties can be severe, so it is crucial to understand the factors that will affect your case. California DUI penalties can also vary based on how high your BAC (blood alcohol content) is. So let’s discuss the various factors that can affect your DUI case and what you can expect.

Keep in mind that you should seriously consider looking into defense lawyers to represent you in court. Many in California offer free consultations so that you can discuss your options. When you have qualified DUI attorneys in your corner, you stand a much better chance of getting a favorable outcome.

Charged with a Second DUI in California? Here’s What to Expect

If you’re facing your second DUI in California, you are likely familiar with the first-time DUI penalties. Things are much different for your second offense. While it’s true that you can still get an interlock system installed after 90 days if you lose your DMV APS hearing, it must remain in your vehicle for one full year. What’s more, you’re looking at your driver’s license being suspended for two years as a result of the conviction this time around. After the first year, you can have it switched over to a restricted license. If you agree to a DUI interlock, however, you can get driving privileges right away as long as the 90-day APS suspension has passed.

Other likely penalties include:

  • Summary DUI probation of 3 to 5 years
  • Mandatory jail sentence of at least 96 hours or as much as one year
  • Fines ranging from $390 to $1,000 plus penalties assessments of approximately $1,000
  • Complete either an 18-month or a 30-month driver responsibility program approved by the court

Since you will likely be out on probation, court in California always impose the following conditions:

  • You will have to agree to take a chemical test if you are arrested again for DUI
  • You may not commit any new crimes while on probation
  • You must not drive with any measurable BAC

Not only that, but you may also need to take part in additional penalties based on the circumstances of your DUI offense. 

  • Participate in the MADD (Mothers Against Drunk Driving) Victim Impact Group
  • Attend AA (Anonymous Alcoholics) or NA (Narcotics Anonymous) meetings
  • Take part in the ignition interlock devices program for up to three years
  • Make restitution (if you cause an accident while driving intoxicated)

Criminal Record

Although it is certainly disappointing, the second DUI conviction may be expunged.  You can typically get this if:

  • You were put on probation
  • You successfully completed probation

Essentially, the expungement petition is submitted to the court and then reviewed by the judge. If the judge grants the petition, you can withdraw the guilty or non-conviction plea and submit a “not guilty” plea again. Once a plea of ​​“not guilty” is filed, the case should be dismissed.

What is the Legal Limit for Blood Alcohol Content in California?

The legal limit for blood alcohol content in California is 0.08%. This is the standard throughout the United States and most other countries around the world. A person can be charged with a DUI if they are driving while intoxicated, meaning their blood alcohol content (BAC) is at or over this legal limit of 0.08%. 

There are many factors that affect how quickly someone’s BAC will increase to this level; these include tolerance levels, gender, weight, age, and more. It’s important to note that it takes time for your body to absorb an alcoholic beverage into your system.

The California BAC limit is .08%, meaning anything at or above this range is illegal. That said, you can still face charges if your BAC is below .08%.. Moreover, most states have zero-tolerance DUI laws for BAC limits of 0.02% or more for drivers under 21. However, California’s zero-tolerance limit for underage drivers is .01%. The same applies to anyone on DUI probation, regardless of age. Moreover, if you are pulled over and pass a breathalyzer test but fail field sobriety tests, you can be arrested and charged with DUI. 

Can DUI Punishment Be Increased?

There are certain circumstances that, if present at the time you are booked for your second offense DUI in California, will increase your county jail or state prison sentence.

The most common of these include:

  • Having a blood alcohol content (BAC) of 0.15% or higher (less in some counties)
  • Refusing to submit to a chemical test
  • Causing an accident
  • Being a minor under 21 at the time of your DUI offense
  • Driving at excessive speeds
  • Having children under the age of 14 in the car 

What type of enhanced penalty you receive for any of these aggravating factors will largely depend on (1) the exact circumstances of your California DUI arrest, and (2) your criminal history (with focus on your prior DUI history). Clearly, a prior DUI conviction, combined with one of the above-mentioned aggravating factors, makes the pending penalties even more severe.

If you are facing your second DUI in California, it’s important to have legal counsel on your side. When you work with a qualified attorney, they will fight for the best outcome possible and ensure that you can drive to work with minimal restrictions. As long as you complete the court’s requests and don’t get into any more trouble, you can expect a smoother probation period. 

Check for DUI law firms in your area and ask to set up a consultation to discuss the best course of action for proceeding with your case.

Rules for Obtaining a Blood Sample After a DUI Arrest

There is much confusion over the rules for obtaining a blood sample after a DUI arrest. Many people are unclear of the laws regarding DUI cases and what’s permitted in court. Do you have to submit to a blood test? What can affect a blood alcohol test? This blog will answer these questions and more. 

Here, you will learn what your rights are while gaining a comprehensive understanding of the DUI blood test. If you have already submitted to a blood test or you’re facing a DUI case, this article will offer guidance and direction as to how to proceed.

What is a DUI Blood Test?

The term “DUI” is an acronym for Driving Under the Influence. Moreover, DUI means operating a motor vehicle while intoxicated with drugs or alcohol. Every state has its own DUI law that dictates it is illegal to drive while intoxicated, whether under the influence of alcohol, marijuana, prescription medication, or illicit drugs. 

What’s more, some states have laws in place that differentiate between the various possible DUIs, such as one involving alcohol and one involving an over-the-counter medication like cough syrup. And it’s because there are so many possible scenarios involving DUIs that blood tests exist.

Blood tests help determine the blood alcohol content (BAC) in persons charged with DUI. If you are pulled over, and the police officer determines that you are intoxicated, blood testing can be ordered. 

But unlike breathalyzers, blood tests are almost never performed at the scene of the arrest. Unless there is a unique situation where a qualified medical practitioner is present at the scene and has the necessary equipment to legally do so, all blood tests take place in a medical facility.

Moreover, blood alcohol testing in hospitals ensures that proper laws regarding chemical testing are followed. Some states have strict regulations in place that dictate who can take a blood sample and test alcohol levels, as well as the manner in which the samples are analyzed and transported.

It’s rare that police officers are trained and equipped to administer blood tests. And even you are pulled over for DUI by an officer that can perform blood draws, your state’s laws may prohibit them from doing so at the scene.

If you discover that someone took a blood sample from you who wasn’t qualified to do so, you can legally challenge the results of the blood test.

What Can Affect a Blood Alcohol Test?

Blood alcohol tests are used to determine the blood-alcohol concentration (BAC) of a driver suspected of driving while intoxicated. BAC is defined as the amount, by weight, of ethanol in 100 milliliters of blood or 210 liters of breath. 

There are a number of factors that can affect the validity of this test. Some things that may cause an inaccurate reading include time from alcohol consumption, having diabetes, taking certain medications, or eating food right before the test. 

Time

Your body absorbs alcohol the moment you consume it, and it does so quite efficiently. However, it can take as much as 60 minutes for your blood alcohol concentration to reach its peak. Therefore, it is very likely that a blood alcohol test conducted 30 minutes before or 30 minutes after the peak 60-minute mark would yield very different results.

Medications

This is a very significant factor that can radically change blood alcohol levels. For instance, some medicines can cause a person’s body to respond in a way that limits the effects of alcohol, while other medications can actually make the effects worse.

Food

The more food you have in your body, the longer it takes you to absorb alcohol into your blood. Therefore, if you and a friend have been drinking the same amount of alcohol, but you have an empty stomach, it’s likely that testing you both would should you to have a higher blood alcohol level.

What is the Legal Limit for Blood Alcohol Content?

In every state, the legal limit for BAC is 0.08%. However, the limits vary when it comes to increased penalties. For example, the California BAC limit is 0.08%, with penalties increased for anyone caught driving with a blood alcohol content of 0.15% or higher.

If you are facing DUI charges, it is important to secure the legal counsel of a qualified DUI attorney. Your lawyer will ensure your rights are not violated.

For your blood test to count as evidence in court, prosecutors must follow what’s called the “chain of custody.” This means that they must establish the following to the court in order for the blood test to be accepted as evidence:

  • Who performed the blood draw
  • Whether they were qualified
  • Where it was taken
  • How it was taken
  • Who analyzed it
  • Their qualifications
  • Protocols in place to ensure your sample was constantly accounted for
  • Protocols in place to ensure testing equipment was constantly accounted for
  • The use of a common testing method
  • Proper storage and transport of sample

In addition, there is special documentation in place that must be signed and dated every time a blood sample changes hands. In DUI defenses, attorneys carefully research and review the above requirements and make sure the proper paperwork was used throughout your testing.

If anything was ignored, overlooked, or protocol wasn’t followed correctly, your attorney will fight to have your sample disqualified as evidence.

Penalties for Refusal of a Chemical Test

Each state has its own implied consent law, which can result in penalties for refusing to take a chemical  test- whether a breath or  blood test- when authorities have a basis for believing you are operating a motor vehicle while under the influence. What type of penalties you might face depends on the state in which you are pulled over. However, while you can face additional penalties for refusing to take a blood test and the refusal can be used as evidence of guilt at trial, you cannot face a separate criminal charge for refusal of a blood test.

Blood Test Administration: How It Works

If you do anything to purposefully delay the test, the police may deem you a refusal. With that said, you can request that a different type of test be administered to you, such as a breath test if it is available.

Just be aware that if alternative tests aren’t available, you must agree to the blood test. Upon administration, a qualified person will use a syringe to draw blood from a vein. That sample is stored in a vial that is then sent off for analysis.

If you are concerned about the way your blood test was handled or you want to ensure that you are fairly represented, contact a trusted DUI attorney today.

How Do California Police Officers Test for Marijuana?

Just as driving drunk is illegal, so is driving under the influence of marijuana. Essentially, any impaired driving can get you into trouble. If you’re pulled over by a police officer who suspects impairment, tests can detect THC if necessary.

While it’s true that recreational marijuana use is legal in many states, including California, it’s still against the law nationwide to operate a motor vehicle while under the influence of drugs or alcohol of any kind.

Thus, law enforcement agencies can legally request that you consent to a weed DUI test. But what are these tests, and how do police officers detect THC? To answer this question and more, we first need to define what it means to drive under the influence of marijuana.

Marijuana Use While Driving

Drivers are affected by marijuana and thus under the influence when consumption causes physical and mental impairment to the point where the driver can no longer safely operate a vehicle. But to determine whether the driver in question is under the influence, a judge or jury will have to decide.

This is because California law doesn’t have a set legal limit for marijuana in one’s system. What’s more, there is much debate surrounding the effects of marijuana while driving. Some proponents argue that cannabis use actually makes you sharper and more aware of your surroundings.

Others, however, claim it to be just as dangerous as drunk driving. If a driver is under the influence of marijuana at the time of arrest, a prosecutor must convince the judge or jury in court.

DUI cases regarding marijuana driving pose a serious challenge to prosecutors. As stated, California doesn’t set limits on how much cannabis a person can have in their system while driving. Thus, prosecutors have to prove that however much a person had present in their body was enough to cause impairment behind the wheel. 

THC vs CBD: Knowing the Difference

THC is short for delta-9-tetrahydrocannabinol and is the primary ingredient in cannabis that causes psychoactive effects. It’s also what makes cannabis users feel “high.” Some weed contains minimal THC content, but the CBD (cannabidiol) content might be high. CBD is a non-psychoactive substance found in hemp. 

In fact, many medical marijuana users choose high CBD strains to get the health benefits of marijuana without the intoxicating effects. This can ensure that they don’t fail a drug test for work, for example.

Chemical Testing: Does It Work?

Chemical testing is available for checking a person’s THC levels. However, these tests are unreliable. To make matters worse, experts disagree on how much THC is safe. As such, this division and unreliability present problems for convicting a driver of a DUI charge.

With that said, the test results from chemical testing aren’t needed for conviction. This is often confusing to drivers in California. But if there is enough evidence elsewhere to show that you were impaired, test results become unnecessary.

Also, it’s important to note that if all the prosecution has is a positive chemical test and there’s no other evidence, the test usually won’t be enough for a conviction. At the end of the day, it often comes down to other forms of evidence that prove you were under the influence and unsafe to drive a motor vehicle.

Other Evidence

So, what are the other forms of evidence that you might need to be worried about? Examine the examples below to better understand the evidence that can result in a DUI conviction.

  • Your driving pattern
  • The statement you gave to the police
  • Your performance in Field Sobriety Tests
  • You had marijuana on you or in your vehicle
  • You had drug paraphernalia on you or in your vehicle
  • There’s evidence that shows you’re addicted to cannabis

Moreover, if there is a Drug Recognition Expert (DRE) at the scene, they will make a note of your appearance and actions. People who are intoxicated will exhibit the following traits:

  • Delayed/slow reaction time
  • The smell of weed
  • Rapid breathing
  • Fast heart rate
  • Dilated pupils
  • Dry mouth
  • Red eyes

Most of the time, when there is suspicion of drug use, the attending officer will call in a DRE to examine the suspect. If the case goes to court, the DRE can testify on the arresting officer’s behalf, thus providing potentially damaging evidence against the suspect.

Testing for Marijuana: How It’s Done

If the officer suspects drug use in a person who chose a breath test, a blood test may be ordered. However, a blood test can only be requested if the officer believes the following: 

  • The driver is under the influence of marijuana or other types of drugs
  • The blood test will show that drugs are present

Moreover, blood tests usually come up in the following scenarios: 

  • The breath test came back negative, or the alcohol content was very low
  • The police officer smells marijuana on the driver
  • The police officer observes physical signs revealing intoxication
  • The police officer found drugs in the driver’s vehicle
  • The police officer found drug paraphernalia in the vehicle

If a blood test is not possible, such as if a medical condition prevents it or a blood test isn’t readily available, a urine screen will be presented instead.

Chemical Tests and Reliability

Using chemical tests to prove that someone is driving under the influence of marijuana has three fundamental problems:

  • There is no consensus on the extent to which cannabis can cause driving problems
  • Chemical tests cannot reliably indicate when someone used marijuana
  • They cannot reliably indicate how much has been used

Test results may also vary based on the type of test used. When you secure the services of a trusted DUI attorney in California, you can look forward to comprehensive research and representation that fights for your rights.

Your lawyer will carefully examine all evidence to make sure that proper protocols are followed at all times. So if you are facing DUI charges, consider getting legal counsel. You will have the guidance and direction you need to ensure that nothing is overlooked in your case.

Blood Testing

The most commonly used chemical test in cannabis DUI cases is a blood test. The blood test directly looks for the presence of THC. But unlike alcohol, the rate of metabolism of THC is not stable, especially when smoking. Conversely, the THC level in the blood can reach a peak in just ten minutes and then drop rapidly.

When someone’s arrested, and blood samples are taken, most of the THC will likely be gone. Furthermore, THC can be detected within one month after smoking marijuana.

But the bigger problem with THC blood testing is that, unlike water-soluble alcohol, THC is fat-soluble. This means that once ingested, it will be stored in the body’s fat tissues.

These fatty tissues can filter stored THC back into the blood for up to a month or more. Therefore, even if the driver has not smoked or used marijuana recently, the THC blood test may be positive. 

In addition, low THC levels in the blood may be due to relatively recent use or long-term use. So even if a person didn’t recently consume cannabis, it could still show up. As such, a positive blood test does not factor in as well as one might think.

Urine Testing

The urine test does not directly check for the presence of THC. Instead, it detects the presence of inactive metabolites found in cannabis. These inactive metabolites can be detected in the urine for a long time after using cannabis. Some estimates indicate that they can be detected in long-term users for up to 4 weeks.

Since these substances do not cause harm by themselves, a positive urine test does not prove that someone is “affected” by marijuana. It only indicates that the person had smoked marijuana at some point in the past month or so.

It’s also worth noting that strains high in CBD can trigger false positives. With so many variables, it’s difficult for prosecutors to paint a clear picture of factual use in a suspect. This is why it’s so important to have a qualified DUI attorney in your corner. 

Your lawyer will focus on the inaccuracies of the testing methods used and fight to prove to the court that you weren’t impaired while driving. Moreover, your attorney will carefully gather evidence and make sure that proper procedures are followed at all times. 

To ensure that you receive the representation you deserve, contact a California DUI attorney today.