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Driving High: What Happens If I Get a Marijuana DUI? 

DUI Law Firm of Jon Woolsey Aug. 30, 2022

Golden Sign with Gavel and DUI LawProposition 64 may have made the possession, consumption and even cultivating marijuana legal in California for those over 21 years of age but driving under the influence of marijuana—or any drug—is still a crime. A marijuana DUI falls under California Vehicle Code 23152(f), which states: “It is unlawful for a person who is under the influence of any drug to drive a vehicle.” Notice that it says, “any drug.” This means that your doctor can prescribe you an anti-anxiety medication, but if it leads to impaired driving, you can still be held liable for a DUI. Likewise, even legal or medical marijuana consumption can land you a DUI. 

If you find yourself facing a marijuana DUI charge in or around Santa Rosa, California, contact me immediately at DUI Law Firm of Jon Woolsey. My practice is dedicated solely to defending those facing DUI charges. And, the combination of legal marijuana use and driving very frequently leads to an arrest for DUI and a very prolonged evaluation by the District Attorney's office of blood evidence that in 90% of cases leads to the filing of criminal charges.

I proudly serve clients facing DUI charges in Santa Rosa and throughout the North Bay Area, including Napa, Mendocino, Marin, and Sonoma counties. 

Marijuana Laws in California 

On November 8 in 2016, 57 percent of California voters approved Proposition 64, which legalized marijuana use by those age 21 and older. If you are 18 and have a medical marijuana authorization issued by a doctor, you can also purchase marijuana for personal use. 

In general, Proposition 64 allows adults aged 21 or older to possess one ounce of dried marijuana or eight grams of concentrated cannabis. They can also grow up to six plants for personal use subject to certain restrictions.  

Marijuana and cannabis products must be smoked or consumed in private. If you are on someone else’s property—say a rental unit—the owner or landlord of the property can ban usage. The same goes for workplaces. Employers can ban marijuana usage. No smoking or consumption is allowed in public places. You also cannot possess marijuana or concentrated cannabis on any K-12 school grounds while school is in session. 

It is also illegal to smoke or consume marijuana or cannabis products while operating a vehicle, even medical marijuana. 

Marijuana DUI in California 

If you are pulled over for suspicion of an alcohol-related DUI, officers can arrest you and require you to give a chemical test of your breath or blood. If your blood or breath alcohol content (BAC) is above 0.08 percent, this is considered a per se DUI, meaning the BAC is proof enough that you were under the influence. 

When you are taken in for a marijuana DUI, there is no per se standard in California. In other words, there is no level of delta-9-tetrahydrocannabinol (THC) that is considered illegal or illegal in California when it comes to driving. A blood test may still be administered at the officer's discretion, but by the time the arrested citizen gets to the blood draw location, THC levels in a person's blood do not correspond to the THC levels in the brain at the time of driving. This makes the determination of marijuana impairment problematic. And, if you add CBD to the equation results of tests can be further complicated as CBD has the same molecular formula as THC and this means it can be mistaken for THC.

Since there is no per se standard, California law enforcement officials have an easier time proving a marijuana DUI charge. Instead of a conviction based on a blood test, they will rely on: 

  • The driving pattern of the defendant 

  • The defendant’s statements when questioned 

  • The defendant’s performance in a field sobriety test (FST)

  • Your performance of DRE (drug recognition expert) evaluations by an officer who has advanced training in drug detection

  • The presence of marijuana or marijuana paraphernalia in the defendant’s car or person, and

  • The testimony of the State's expert, a DOJ (Dept of Justice) Senior Chemist

Physical symptoms of marijuana intoxication may also come into focus, including: 

  • Nystagmus present in evaluation of your pupil movement, dilated pupils, lack of convergence and red, watery eyes 

  • Elevated pulse and/or rapid breathing

  • Marijuana odor on the person’s body or clothing 

  • Slow or thick speech

  • Coating on the tongue and lethargic movements

Possible Penalties 

As with all crimes, the penalties for a marijuana or other DUI rise with each subsequent conviction. A first-time conviction, without any enhancements such as excessive speed, an accident and reckless driving may sound “reasonable” to some folks, but a minimum of 96 hours in jail or jail alternatives, a fine of up to $2,400, a license suspension of 6 months with work only restrictions and completion of a DUI program doesn't take into account the collateral consequences associated with a criminal record. 

With repeat convictions, however, jail time rises to a max of one year, and by the fourth offense, you may be staring at a prison sentence. If your driving results in injuries to others, additional "extreme" penalties will be tacked on.  

The bottom line is that any conviction becomes part of a criminal record that will attach to your name going forward, jeopardizing job opportunities and public benefits. 

Defenses Against a Marijuana DUI 

First, you must have actually driven the vehicle while impaired. If you’re merely sitting behind the wheel with the engine idling or off, you’re not technically driving. You must perform some action that is necessary to operate and direct the course of the vehicle. However, if it can be shown that you were driving at an earlier time while impaired, nobody had to see you drive in order for the officer to make the arrest for a DUI.

Since there is no per se THC level that dictates a marijuana DUI conviction, just about every piece of evidence or testimony introduced by the prosecution is open to challenge. Even if a blood test shows THC in your system, that can be challenged by cross examination of the State's expert and direct testimony of our own expert.

The Importance of Skilled Advocacy 

Before even answering questions by police or prosecutors—except for basic ones to identify yourself—you should seek the counsel and guidance of an experienced DUI attorney. My entire law practice is devoted to those facing DUI charges, whether marijuana or otherwise. Remember the warning in the Miranda Rights: “Anything you say can and will be used against you.” 

If you’re facing a marijuana DUI charge in or around Santa Rosa, California, or anywhere in the North Bay Area, contact me immediately at DUI Law Firm of Jon Woolsey.