The possession of marijuana has long been a criminal offense across the country. But on January 1, 2018, California legalized the possession (by those over 21) and sale of up to one ounce of marijuana for recreational purposes. However, this legalization of marijuana has no effect on the state’s laws regarding driving a vehicle while impaired by marijuana — or, as it is often called, “driving under the influence of marijuana”, “driving with a marijuana high” or “driving stoned”.
Driving under the influence of any drug is a crime. This includes not only illegal narcotics, but also prescription medication, prescribed marijuana, and on some occasions, even over the counter medications. The crime is often referred to as DUI drugs, DUID, drugged driving, driving under the influence of marijuana or any combination of drugs.
Vehicle Code section 23152(f) and (g) state this offense has the same consequences as driving under the influence of alcohol. The law indicates the following:
- It is unlawful for a person who is under the influence of any drug to drive a vehicle.
- It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.
Driving both under the influence of drugs and driving under the influence of alcohol are very similar. It affects your nervous system in a way where you are impaired and you are in an altered state of consciousness. However, there are significant differences between the two offenses when being charged.
California Vehicle Code section 23152(a) & (b) state that it is illegal to drive under the influence of alcohol, and to drive with a blood alcohol concentration of .08% or more. California law does not specifically prescribe a prohibition on the amount of a given drug. Whether it be a prescription medication, marijuana, or controlled substance, California law does not actually prohibit a certain amount of a given drug in a person’s system. Rather, the law simply prohibits a person from “driving under the influence” of a drug. In order for a person to be considered “driving under the influence” of a drug, it must have such an effect on a person so that their mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.
Often times individuals who are suspected of DUID are put through the same or similar tests as are driver’s suspected of alcohol DUI. On most occasions, however, a “drug recognition expert” known as a “DRE” is usually called into the case when drugs are involved to examine the individual in question. A DRE is supposed to have special training related to identifying the symptomology of different types of drug use, and he/she can testify to the symptoms and effects of drugs or marijuana, and determine if the person is impaired in their opinion.
Important: A driver can be using marijuana or medication legally with a physician prescription, and yet if he or she is legally impaired, they can be charged with driving under the influence drugs according to CVC 23152(f). In fact, there are circumstances where sometimes over the counter products and medications, such as Benadryl or Nyquil, can be alleged to have caused a person to be “driving under the influence of a drug”.
In addition, a DUID Is very different from an alcohol-related DUI in terms of the potential consequences in the DMV. If a person is arrested because of an alcohol-related DUI, then the DMV can impose an “administrative suspension” on their license if the person refuses the chemical testing or if there is a BAC above .08%. Again, in DUID situations, there is no actual amount of drugs that can cause an “administrative suspension”. Therefore, the DMV cannot impose an administrative suspension due to any amount of drugs found in a person system, however, they can still impose a suspension if the person was valid arrested for a DUID and they refused chemical testing. (The DMV can also impose a separate suspension if a person is convicted of any DUI charge in criminal court.)
The chemical testing between DUI drugs and alcohol-related DUI also has some differences. Whereas law enforcement has the capability of testing for a person’s blood alcohol concentration (BAC) through the use of a breath test, such a test will not show the presence of marijuana or drugs (at this point – although technology and laws are quickly advancing). Consequently, testing for drugs has to be administered by taking a blood test.