How is a Marijuana DUI Different From Driving Under the Influence of Alcohol?
In California, driving under the influence is a major cause of car accidents. According to California VC 23152(a), DUI means driving while impaired by alcohol or drugs. However, the way the prosecution handles DUI charges for alcohol and drugs is quite different. If you are charged with a marijuana DUI in California, you could face severe repercussions if found guilty. You should consult a skilled DUI lawyer for more information and trustworthy legal guidance.
Marijuana DUI Vs. Alcohol DUI in California
There are certain differences between being arrested for a marijuana DUI and a DUI of alcohol. Medical marijuana was legalized in California in 1996 after the passage of Proposition 215, also called the Compassionate Use Act. In 2016, Proposition 64 legalized the use of recreational cannabis for adults aged 21 and older, with the law taking effect in January 2018.
In California, marijuana DUIs fall under subdivision (f) of Section 23152 of the Vehicle Code, which makes it illegal for anyone under the influence of any drug to operate a vehicle. Also, subdivision (f) of Section 23153 makes it unlawful for someone under the influence of any substance or drug to operate a vehicle and commit any illegal act or neglect their duties, causing injury to others. Marijuana does not have a separate DUI category; it falls under the same rules as other drugs.
To secure a DUI conviction for cannabis in California, prosecutors must establish two key facts:
- You were driving a vehicle
- You were under the influence of cannabis while doing so
For alcohol DUI, California Vehicle Code Section 23152(a) makes driving under the influence of alcohol illegal. When you are arrested for DUI, you must undergo a breathalyzer or blood test to determine your BAC (blood alcohol content). You can be convicted of DUI even if your blood alcohol concentration (BAC) is less than 0.08%. The key point is whether you are too impaired to drive safely.
If your breath or blood test shows a BAC of 0.08% or higher, you will face charges for both:
- 23152(a) VC – driving under the influence and
- 23152(b) VC – driving with a BAC of 0.08% or more (“DUI per se”).
Even if you are found guilty of both charges, it will be treated as one DUI conviction.
If you are arrested for a DUI, it may be because the police officer observed you driving, pulled you over, and then arrested you due to probable cause. Where there is an accident or the car is parked without an officer present, witnesses, circumstantial evidence, passengers, and the defendant’s statements can help prove that driving occurred. In DUI cases, circumstantial evidence might include the defendant being seen in the driver’s seat of a parked car, the engine being warm, or the keys being in the defendant’s possession.
For example, a police officer finds a car parked on the side of the highway. Inside the vehicle is Wade. Although the police officer did not witness Wade driving, she can still arrest him.
Direct evidence is not just a police officer saying they saw the defendant driving. It can also include photos or videos from traffic cameras, as well as any admissions or statements made by the defendant during the traffic stop. Circumstantial evidence is often more open to scrutiny than direct evidence in court.
Another key element of a DUI case is proving that the defendant was impaired while driving. A driver is deemed under the influence if their physical or mental abilities are affected to the point where they cannot drive safely, as a sober individual would.
During a trial, the judge or jury decides if the prosecution has demonstrated beyond a shadow of a doubt that the defendant was driving while impaired.
Marijuana Vs. Alcohol Legal Limits
Each state, including California, has a law that defines the maximum amount of alcohol a driver can have in their system while driving. The legal limit in California is 0.08 BAC for regular drivers and 0.04% for commercial drivers, and drivers who go over these limits can be prosecuted for drunk driving.
In contrast, California has no clear consensus on how much cannabis use leads to legal consequences. While most people agree that being high on marijuana can affect driving skills, there is no standard blood test or specific level of THC that can be utilized to decide if someone should be charged with DUI. This lack of clear rules makes it hard for police to enforce marijuana DUI laws fairly. It also leaves drivers unsure about when they might be too impaired to drive or at risk of being arrested for using cannabis.
This lack of a legal limit for marijuana sets California apart from other states, where some have specific restrictions on the quantity of delta-9-tetrahydrocannabinol (THC) allowed in a driver’s system. THC is the primary psychoactive component in marijuana that causes the “high” sensation.
Proving a Marijuana DUI is More Difficult
Alcohol affects your body and mind as it enters your bloodstream. The more you drink, the more your judgment becomes impaired. However, if you stop drinking, the effects of alcohol will gradually lessen as your body processes it. Depending on your alcohol intake, you may be able to drive safely after a few hours.
This situation is quite different for drivers who use marijuana. The effects of using marijuana can be felt almost immediately and may last for several hours or even days, depending on the individual. Additionally, marijuana can be detected in a drug test days after use. This factor makes it harder for prosecutors to prove a marijuana DUI case.
Police can quickly conduct a BAC test to check your blood alcohol content (BAC) for alcohol use. However, even with chemical tests, law enforcement cannot accurately determine how much cannabis a driver consumes right before driving. These tests can only indicate if a driver used marijuana at some point before driving. A person might have consumed it minutes, hours, or even days earlier.
If you are charged with marijuana DUI, you can argue that you used marijuana recreationally or that you smoked days before your arrest. The prosecutor will struggle to prove in court that you were driving under the influence of marijuana due to insufficient evidence.
That means that the prosecution needs more evidence to prove a marijuana DUI. The officer who makes the arrest must gather additional proof. For instance, they might claim the driver was smoking in the car before their arrest. They could present evidence like finding marijuana in the vehicle or detecting its smell. If the driver shows signs of impaired driving, this could strengthen the case for a guilty verdict.
Chemical Tests For Marijuana DUI Are Different From Those For Alcohol DUI
Chemical testing can indicate whether you used drugs or alcohol before driving. Blood alcohol content tests are important because they provide the prosecution with your BAC levels, which are necessary for charges under California Vehicle Code 23152(b). In contrast, chemical tests for marijuana only show that you used the substance at some point before driving, which could suggest you were driving while impaired.
Chemical tests for checking marijuana and alcohol in your system are different. Usually, traffic police use breathalyzers to measure a DUI suspect’s blood alcohol content. Breathalyzers are less invasive and easier to use than blood tests. Blood tests for alcohol are only done in certain situations, like if a person is too drunk or unconscious to give a breath sample.
For marijuana, a blood test can be used to see if a driver is impaired. If police suspect you are under the influence of cannabis, they might suggest a breath test. If there is no evidence of the drug, they may switch to a blood test. Blood tests can detect drugs, and if you cannot take one due to health issues like hemophilia, the officer may recommend a urine test.
Chemical tests for marijuana DUI can be quite invasive, and their results may not be reliable in court. They cannot show how much of the drug is in your system or when you last used it.
Convicting Someone For Marijuana DUI Without a Chemical Test Is Possible
Prosecutors need evidence to support their claims against defendants. The court’s decision in DUI cases relies on various types of evidence. For alcohol DUIs, a chemical test can prove that you were driving while intoxicated and that your blood alcohol level exceeded the legal limit. However, for marijuana DUIs, such proof is not necessary.
Even if you used marijuana days before your arrest, your chemical test can read positive. That means that a chemical test alone will not provide the prosecution with the solid evidence needed for a conviction. Because of this, chemical testing is not necessary to prove a driver is guilty of a marijuana DUI.
However, the prosecution must show more evidence that you were driving under the influence of drugs. For example, the officer who arrested you should explain why they stopped your vehicle. How did you behave while driving? The police need a valid reason to pull you over and start a DUI investigation, especially if you were speeding, driving recklessly, or violating other traffic laws.
Additionally, the police must present more evidence that led to your arrest and the marijuana DUI charges. This evidence could include the officer observing that:
- Your eyes were bloodshot
- You were showing signs of paranoia and confusion, or you were anxious. These signs are usually associated with the chemical THC found in marijuana
Chemical Tests for Marijuana Are Not Reliable
Usually, drivers suspected of being under the influence of marijuana must take a chemical test since marijuana is not detectable with a breathalyzer.
There are a few main issues with using chemical tests to prove marijuana impairment while driving:
- Chemical tests cannot show how much marijuana was consumed.
- These tests do not reliably indicate when the drug was used.
- There are no laws defining how much cannabis leads to impaired driving.
Test results also differ based on the kind of test conducted.
Blood Tests
In DUI cases involving marijuana, blood tests are the most typical chemical tests used. These tests specifically check for delta-9-tetrahydrocannabinol. Unlike alcohol, the delta-9-tetrahydrocannabinol does not break down at a consistent rate, particularly when smoked. THC levels can peak within ten minutes and then drop quickly. By the moment you are detained and the blood test is done, most of the THC may have already left your system.
THC Can Be Detected for a Month
Alcohol is water-soluble, unlike THC, which is fat-soluble. That means that after consumption, THC is accumulated in the fatty tissues.
These fat cells can release THC back into your bloodstream for as long as a month or more. Therefore, a blood test can show positive for THC even when a defendant has not used marijuana recently.
Additionally, low levels of THC in your blood can occur due to:
- Recent use (like smoking in the last 1 to 3 hours)
- Long-term use (without recent consumption).
A positive result from a blood test does not provide clear proof of a Vehicle Code 23152 violation.
Urine Tests
Urine tests seek to find THC itself. Instead, it looks for inactive substances that come from marijuana. These substances can stay in urine for a long time after use, with some estimates saying they may be found in regular users for up to 11 weeks.
Since these substances do not cause the user to be impaired, a positive test result does not mean you were “under the influence” of cannabis. It only shows that you used cannabis in the past weeks or so.
Low THC / High CBD Strains Can Cause False Positives
Low THC / high CBD strains can lead to incorrect results. Even if this kind of marijuana strain does not make you high, it has other cannabis substances that can cause an “inaccurate positive” on a urine test.
Saliva Tests / Oral Swabs
Some counties in California are now using roadside saliva tests for marijuana. This test involves swabbing the inside of a person’s mouth using a cotton swab.
These swabs are easy to do and can show if marijuana was used within several hours. However, while a saliva test can detect marijuana, they do not reliably show how much was used or if you were impaired.
Currently, saliva tests have not been accepted as evidence in DUI cases. Therefore, law enforcement uses them only as a first step. If the saliva test result shows THC, the police officer will likely arrest you and ask for a blood test.
Marijuana DUI May Need a Drug Recognition Expert (DRE)
Usually, the arresting officer’s testimony is key to showing impairment. However, some law enforcement agencies in California may involve a Drug Recognition Expert to assess the defendant. The DRE can also testify in court about the physical signs of impairment observed during the arrest.
Do the Penalties for Marijuana DUI and Alcohol DUI Differ in California?
The penalties for driving under the influence of cannabis are similar to those for alcohol DUI. Marijuana DUI is typically treated as a misdemeanor unless a severe accident occurs. Under California VC 23152(f), it can be classified as a “wobbler” offense when someone is injured, meaning it can be prosecuted as either a felony or a misdemeanor.
For a first-time marijuana DUI conviction, penalties may include:
- 96 hours to 6 months in jail
- A fine between 390 and 1,000 dollars
- 3 to 5 months of informal probation
- A driver’s license suspension for 6 months
Penalties increase with each subsequent conviction. Marijuana DUIs can be prosecuted as felonies in rare situations, such as if:
- The driver has three or more previous wet reckless or DUI convictions in the last ten years
- The marijuana use led to an accident, causing injury or death to someone else
- The driver has a felony charge within the past 10 years.
Felony DUI penalties can include:
- A prison sentence in California,
- Formal probation for a felony
- A driver’s license suspension for one year or more.
If someone dies because of the defendant’s impaired driving, the defendant may face charges of second-degree murder (often called DUI murder or Watson murder) or gross vehicular manslaughter when impaired under PC 191.5(a).
Find a DUI Lawyer Near Me
Marijuana DUI cases are complex and depend on specific details compared to regular DUI cases. When your freedom is at risk due to a marijuana DUI charge, you should contact a defense attorney as early as possible. Being convicted can cost you high fines, the loss of your driving license, and imprisonment, and it could affect your career. With so much on the line, having a strong defense is essential. The attorneys at Koenig Law Office are dedicated to fighting for you. We understand the law surrounding marijuana DUI and the criminal justice system, and we thoroughly defend our clients. Call us today at 661-793-7222 to schedule your consultation with us in the City of Bakersfield.