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Driving Under The Influence Of Marijuana


If a police officer believes you are driving under the influence of marijuana, you could be arrested for DUI. The police officer might believe that you were also smoking marijuana. However, the police officer would need probable cause for a DUI arrest.

In the alternative, if the police officer does not believe you are impaired by marijuana, he could still charge you with having an open container of marijuana in your vehicle.

Driving While Possessing an Open Container of Marijuana

California Vehicle Code §23222 prohibits someone from driving with an open container of marijuana in the vehicle. It also applies to marijuana that is not in a container. Therefore, the best place for you to transport marijuana is in the truck of your vehicle.

A violation of CVC §23222 is a traffic infraction. You can be fined $100 for driving while possessing an open container of marijuana. 

Are There Defenses to Having Marijuana in Your Vehicle?

Yes, there are several defenses a California DUI lawyer could argue. Potential defenses to the charge include:

  • You are a qualified patient or have an identification card that allows you to possess marijuana legally
  • You were driving on a private road instead of a highway or public road
  • The open container or loose cannabis flower is in the truck of the vehicle
  • The police officer lacked probable cause for a traffic stop

Having an open container of marijuana in your vehicle can lead to DUID investigation.

Driving Under the Influence of Marijuana in California

DUI of marijuana is a serious criminal charge in California. It carries the same penalties as an alcohol DUI. A conviction results in a criminal record.

However, there is no “legal limit” for marijuana DUI in California. Some states have per se limits for DUID of marijuana. However, California does not set a legal limit for DUI of marijuana because there is no consensus for the amount of marijuana necessary to impair driving.

Instead, the Vehicle Code states it is unlawful for someone to drive a vehicle “under the influence” of any drug. Under the influence refers to an impairment that prevents a person from performing an activity safely. Generally, driving under the influence is defined as being unable to operate a motor vehicle with the same level of care as a reasonably sober driver.

How Do You Prove Someone is Under the Influence of Marijuana?

Under California’s implied consent laws, drivers must submit to chemical tests after a DUI arrest. Refusal of a chemical test results in an automatic one-year driver’s license suspension. A chemical test refusal results in a two-year revocation of driving privileges if you have a prior DUI conviction within ten years.

Police officers may ask you to take a preliminary screening test during a DUI stop. They may ask you to take a breathalyzer test or a saliva swab test. Until the police officer places you under arrest for DUI, you can refuse a preliminary screening test without penalty. That includes the standardized field sobriety tests (FSTs).

Therefore, the police officer must rely on observations of your behavior and driving to determine if you are under the influence of marijuana, alcohol, or another drug. The police officer might testify that your driving was erratic. For example, you were weaving between lanes, failing to use turn signals, driving too slowly, stopping for green lights, or making sudden stops.

The police officer might also report signs of drug use such as:

  • Red eyes
  • Dry mouth (“cotton mouth”)
  • Problems with balance and coordination
  • Slow reaction time
  • Increased heart rate
  • Paranoia, panic, and hallucinations 
  • Rapid breathing

Poor performance on field sobriety tests is often cited as probable cause for a DUID arrest. Also, the officer might claim to smell marijuana on your body or in the vehicle as other evidence of probable cause.

California also has Drug Recognition Experts (DREs) trained to spot signs of drug use. Police officers with DRE training receive instruction in various subjects, including signs and symptomatology of drugs and courtroom testimony.

It is important to note that having marijuana in your system is not conclusive evidence of impairment. Therefore, a California DUI defense attorney can challenge the charges by arguing there is not sufficient evidence to prove the marijuana in your system impaired your driving ability. 

Driving Under the Influence of Medical Marijuana 

You might be able to get out of a traffic infraction for an open container of marijuana if you are a qualified patient. However, you can be charged with driving under the influence even though you have a valid prescription for medical marijuana.

The law makes it illegal to drive under the influence of any drug. Therefore, you could be charged with DUID for driving under the influence of over-the-counter medication if that medication impairs your driving ability. Arguing that you have medical marijuana in your system will not avoid a DUID of marijuana conviction if the prosecution proves the medical marijuana impaired your ability to drive.

What Are the Penalties for Driving Under the Influence of Marijuana in California?

Most DUI marijuana charges are misdemeanors. They carry the same penalties as an alcohol DUI. Therefore, a first-time DUI marijuana conviction may result in:

  • Between 96 hours and six months in county jail
  • Losing your driver’s license for six months
  • A fine between $390 and $1,000
  • Participation in a drug education or DUI class for three months
  • Summary (informal) probation from three to five years

Marijuana DUI convictions are priorable offenses. Subsequent DUID convictions result in harsher penalties, including mandatory minimum jail sentences.

DUI of marijuana is a wobbler offense. The prosecutor may charge you with a felony. Situations that could result in felony DUI marijuana charges include:

  • Having a prior felony DUI conviction on your criminal record
  • Causing serious bodily injury or death while driving under the influence of marijuana
  • This DUI charge is your fourth DUI, wet reckless, or DUID conviction within ten years

The penalties for a felony DUI marijuana conviction increase substantially. Potential punishments for a felony marijuana DUI conviction include:

  • A fine of up to $5,000
  • 180 days in county jail
  • Probation for up to five years
  • Loss of driving privileges for four years
  • An 18-month drug education class
  • Payment of restitution to accident victims

If you refused a chemical test after your DUI arrest, you have two days added to your jail sentence if the court finds you guilty of DUI marijuana. Also, your driver’s license is suspended for one year, and you must attend nine months of DUI school instead of three months.

Can You Expunge a DUI of Marijuana Conviction in California?

Yes, DUID convictions under California Vehicle Code §23152(f) are eligible for expungement in most cases. Expunging your DUI marijuana convictions means you can say that you have never been convicted of that offense. While the DUI arrest may remain on your criminal record, the court removes the conviction and dismisses the case.

To be eligible for a DUID expungement, you would need to meet the following criteria:

  • A state court heard your case and decided your sentence
  • You did not serve any time in state prison
  • You completed probation, or it has been at least one year since your DUID conviction
  • You did not violate the terms of probation
  • All terms of probation are complete, including paying fines, attending treatment programs, community service, etc.
  • You are not currently on probation, serving time, or charged with another crime

Felony DUI marijuana convictions might qualify for expungement if you did not serve time in state prison. However, you can avoid the need to expunge a marijuana DUI conviction by fighting the DUID charges with the help of a California DUI defense lawyer.

Potential Defenses to DUI of Marijuana Charges

Your attorney analyzes your case to determine the best DUI defense strategy for your situation. Potential DUI marijuana defenses include:

You Were Not Impaired

Having marijuana in your system does not mean your driving abilities were impaired. There must be sufficient evidence showing that having marijuana in your system impaired your driving. 

Because marijuana can remain in your system for hours, days, or weeks, your attorney may argue that other factors were responsible for the “signs of impairment” noted by the police officers.

Lack of Probable Cause

The police officer must have probate cause for the DUI stop and DUID arrest. If not, your attorney can file a motion to suppress the evidence from the traffic stop. Without evidence, the prosecution cannot prove you were driving under the influence of marijuana. 

Flawed or Inaccurate Chemical Tests

The chemical tests performed by law enforcement could be flawed or inaccurate because they used contaminated samples or fermented blood. In addition, the police officers or the lab may have mishandled the samples or failed to keep the chain of evidence. 

There could be other defenses to driving under the influence of marijuana. Seeking legal counsel is in your best interest. Accepting a plea deal without a California DUI defense attorney could mean you are punished unnecessarily. 

The post Driving Under the Influence of Marijuana appeared first on Law Offices of Taylor and Taylor - DUI Central.

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