Marijuana Legalization and the California DUI

Monday, September 5th, 2016

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 8th. 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.”


What are the Penalties for a California Marijuana DUI?

Monday, April 11th, 2016

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.


Is a Marijuana Breathalyzer in the Offing?

Monday, September 14th, 2015

Many are saying that California will be the next state in the Union to legalize recreational marijuana. If their predictions are correct, that would make California the sixth state to do so. Currently, Washington, Colorado, Alaska, Oregon, and Washington D.C. have all legalized recreational marijuana. Although California has not yet legalized recreational marijuana, it has decriminalized marijuana and allows the use of medical marijuana for medical purposes.

With California and other states on the cusp of legalization of recreational marijuana, law enforcement agencies are clamoring for technology that will help them determine how stoned someone is for purposes of driving under the influence.

In June of this year, Cannabix Technologies Inc., a company based out of Vancouver, issued an update on what it hopes to be the first widely used marijuana breathalyzer. According to Cannabix’s website, a prototype has been developed and is currently undergoing testing. According to the company’s founder, retired Canadian police officer Kal Malhi, the device will be able to detect the use of marijuana within two hours.

Lifeloc, a Colorado-based company which already makes and distributes alcohol breathalyzers is also in the race to develop a marijuana breathalyzer.

"I think the first breathalyzer on the market will be a simple ‘yes’ or ‘no’ for the presence of THC at the time of the test, and in that sense it won’t provide a quantitative evidential measure," Barry Knott, the chief executive of Lifeloc, told Reuters.

If developed, the new marijuana breathalyzer would replace the rather inefficient blood test to determine how much THC (tetrahydrocannabinol), the active component of marijuana, is in a person’s system.

Many states that have legalized marijuana either recreationally or medically have set a "per se" limit, or bright line rule on how much THC can be in a person’s system while driving ranging from 0 to 5 nanograms per milliliter of blood.

It is well known that the "per se" limit for how much alcohol can be in a person’s system is 0.08 percent blood alcohol content. With alcohol, there is a fairly strong correlation between blood alcohol content and intoxication. In other words, there is a high probability that a person with a 0.08 blood alcohol content is feeling the effects of alcohol intoxication such that they cannot operate a vehicle as a reasonable and sober person would.

So can the same be said for nanograms of THC per milliliter of blood? Unfortunately, no.

Notwithstanding "per se" THC limits in many states, the correlation between nanograms of THC per milliliter of blood and marijuana intoxication is extremely weak.

Unlike alcohol, THC is fat soluble which means that it leaves the body at a much slower rate. In fact, chronic users of marijuana can have THC in their blood weeks after use. Alcohol, on the other hand, is water soluble and dissipates at a rate of about 0.015 percent per hour. This means that, depending on how much alcohol someone drank, a person can sober up within hours.

This means that someone who has smoked marijuana three weeks ago can still be arrested in states with a "per se" THC limit even though they are no longer under the influence of marijuana and perfectly sober.

It is unclear whether the marijuana breathalyzers currently being developed will quantify how much THC is in a person’s system. Not that it matters. The amount of THC in a person’s system has nothing to do with how intoxicated they are and, consequently, how much of a danger they are to the roads.

Until a marijuana breathalyzer can determine how intoxicated someone is, we run the risk of arresting sober people for DUI. 


California Proposes New Law to Allow Roadside Marijuana Test

Monday, April 27th, 2015

Assembly Bill 1356 has made its way to Capitol Hill and, if passed, would allow law enforcement to use a device similar to a breathalyzer that could detect the presence of marijuana and a number of other drugs in a driver’s system in a matter of minutes.

“It’s very clear that the usage of marijuana is becoming more and more common,” said Assemblyman Tom Lackey from Palmdale, California, who proposed the law.

The law would expand California’s current implied consent law to “provide that a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or oral fluids for the purpose of determining the drug content of his or her blood or oral fluids.”

Currently, if law enforcement want to test for the presence of drugs in a driver’s system following the lawful arrest of that driver, they need to withdraw blood which could take hours.

According to CBS San Francisco, officers would be able to use a portable drug detection device called Alere™ DDS®2 that would allow law enforcement to perform a test on drivers’ oral fluids gathered from the gum line and cheeks. The swabbed fluid samples could provide results within five minutes according to the device’s developers.

"We’d be testing for marijuana, cocaine, opiates, amphetamines, methamphetamines and benzodiazepine," said Fred Delfino, spokesperson for Alere DDS 2, the company behind the new device.

You may recall from my previous posts that the Los Angeles Police Department had been given a federal grant to test these devices.

“The number of drugged drivers is increasing rapidly, and those of us in law enforcement simply do not have the tools necessary to determine the level of impairment on anything other than alcohol,” said Ron Lawrence, chief of police for Rocklin. “If the legalization of marijuana is in our future, we in California law enforcement need to be prepared to deal with the roadways and safety precautions of tomorrow."

The problem is that the device does not test for impairment. It only tests for the presence of the drugs.

It has yet to be determined what amount of drugs found in a person’s system will constitute impairment. According to Lackey, that part of the bill has not yet been worked out.

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment.

"I think that people want to have a clear-cut, black-and-white solution," says Mason Tvert, the communications director for the Marijuana Policy Project, a pro-legalization group. "They want a specific number that we can use to just say that this person is impaired or not. Unfortunately, it’s a little more of a gray area than that."

Unfortunately, Tvert is correct and that gray area can lead to sober drivers getting arrested for DUI of marijuana.

Tetrahydrocannabinol or THC is the active component of marijuana. Unlike alcohol which dissipates after several hours, THC can stay in a person’s system for weeks at a time and well after the person has smoked.

Simply put, the mere presence of THC in a person does not necessarily mean that the person is impaired and incapable of safely operating a vehicle and the new device, if AB1356 passes, could be used to prosecute sober drivers.


New Marijuana Study Skewed by the Media

Monday, October 13th, 2014


Have you seen the recent headlines, “Study Finds Marijuana as Addictive as Heroin” or “Marijuana Makes you Stupid.” I did and immediately asked myself, “Have we gone back in time?”

After reassuring myself that we hadn’t, in fact, gone back in time, I pulled up the study that prompted so many Reefer Madness-esque headlines.

Recently published in the latest volume of the journal, Addiction, the article is a review of the last 20 years of research on the health effects of marijuana. As it turns out, the study, authored by Wayne Hall, a drug advisor to the World Health Organization, is not telling us anything we don’t already know. Instead, the media has skewed and misquoted the findings to, surprise surprise, create an eye-catching headline.

Although the study found that marijuana use had no permanent effect on the IQ of people who use marijuana periodically or started using as adults, media alarmists chose to focus their attention on the one and only group of people whose IQ was affected by marijuana use. That group was “the small proportion of cannabis users who initiated in adolescence and persisted in daily use throughout their 20s and into their 30s.”

Is marijuana really as addicting as heroin as many of the headlines read? Let’s see what the article actually says. “The life-time risk of developing dependence among those who have ever used cannabis was estimated at 9% in the United States in the early 1990s as against 32% for nicotine, 23% for heroin, 17% for cocaine, 15% for alcohol and 11% for stimulants." Yes, you can become addicted to marijuana, just as you can become addicted to nearly anything, but the study makes it quite clear that it is significantly less than most drugs.

The study doesn’t say anything we don’t already know about marijuana’s effect on driving, namely that marijuana use doubles the risk of an automobile accident. According to the study, “…it was clear from laboratory studies that cannabis and THC produced dose-related impairments in reaction-time, information-processing, perceptual-motor coordination, motor performance, attention and tracking behaviour. This suggested that cannabis could potentially cause car crashes if users drove while intoxicated, but it was unclear whether in fact cannabis use did so. Studies in driving simulators suggested that cannabis-impaired drivers were aware of their impairment and compensated for these effects by slowing down and taking fewer risks. There were similar findings in the few studies on the effects of cannabis use on driving on the road…In summary, the epidemiological and laboratory evidence on the acute effects of cannabis suggests strongly that cannabis users who drive while intoxicated increase their risk of motor vehicle crashes 2–3 times as against 6–15 times for comparable intoxicating doses of alcohol.”

Other shocking revelations by the study:

Marijuana use has dramatically increased in recent times, yet there has been no increase in the rates of psychosis…despite what the headlines say.

You actually can overdose on THC, the active compound in marijuana. Based on animal studies, the estimated fatal dose of THC is between 15 and 70 grams. Let’s put this in perspective. The average joint has about 0.06 grams of THC. So based on animal studies, it is estimated that someone can die if they smoke between 238 and 1,113 joints in a day.

Pregnant women should not use marijuana. Big surprise. The study found that there is an evidentiary link between marijuana use during pregnancy and cognitive problems of the child later in life. However, “uncertainty remains because of the small number of studies, the small samples of women in each and the researchers’ limited ability to control for the confounding effects of other drug use during pregnancy, maternal drug use post-birth and poor parenting.”

Don’t believe everything the headlines tell you.