Marijuana DUI Overview

If you have been arrested for a marijuana DUI, it may be your first experience with facing a criminal charge.  If convicted, you could face jail time, fines, suspension of your driving privileges and increased insurance rates.  Convictions can also have negative consequences on your employment, especially if you are a licensed professional or a commercial driver.  The good news is that marijuana DUI’s are difficult for the prosecution to prove because the science favors the driver.  Most marijuana DUI arrests are not based on impairment but simply because the detained driver admits to being a marijuana user.  The truth is that anytime you admit to an officer that you use any intoxicating substance whether it’s a prescribed medicine, marijuana, or alcohol you are getting arrested for a DUI.          

DUI Marijuana Charges

Driving under the influence of marijuana is a crime in California under Vehicle Code 23152(e).  You are guilty if you drive a motor vehicle while your mental abilities are impaired by marijuana to the extent that you are unable to drive with the caution of a sober person using ordinary care.

Marijuana DUI and DMV Hearing Set Aside 

The DMV only takes action on alcohol DUI’s and refusal actions.  No action should be taken against your license on a drug DUI if no refusal is alleged and there is no alcohol involved.  The DMV APS Hearing deals with three things (1) were you driving, (2) were you lawfully detained and arrested and (3) did you have a blood alcohol level over 0.08%.  Since no alcohol is involved in a marijuana DUI, the DMV should set aside your DMV action which means they will take no action on your license.  You should always request the hearing and have the DMV send you a letter that they are setting aside the action.  The other reason you would set a hearing is to challenge any refusal action that the DMV might attempt to take against you.           

DMV Set Aside Notice

If you win the DMV hearing, you will receive a DMV Set Aside notice which tells you the reason the action was set aside.  In a drug DUI, it is because no alcohol was involved.  The notice will also advise you how to get you license back from the DMV. 

DMV License Suspension v Court License Suspension

There are two ways your driving privilege in CA can be suspended.  If you lose or default on the DMV hearing, a 1-year suspension can occur for a refusal.  If you get convicted in court of a marijuana DUI, it will trigger a 6-month suspension. 

Important – DMV Hearing Date MUST BE SET Within 10 days of arrest

To get a DMV hearing you must call DMV to request a hearing, it is not automatically set for you. It is your responsibility to set your DMV hearing within 10 calendar days of the arrest. In refusal cases your license will be suspended for 1 year. The number to call to set your DMV hearing is on your Temp License/Notice of Suspension.

Reduced Marijuana DUI Charges – Reckless Driving (VC23103)

A dry reckless is reckless driving not involving alcohol or drugs. It’s a better resolution then a DUI or Wet/Drug Reckless because it is not prior able against you by the DMV or Court if you ever get another DUI within the next 10 years. There is no license suspension associated with it.

Studies Show that Marijuana Users drive better

It is difficult for the prosecution to prove you were impaired when many of the studies including government studies on marijuana and driving indicate that drivers drive better with marijuana in their system. A CHP study failed to find any correlation between marijuana use and driving ability, except that some people drive better with marijuana. (Biasotti, A.A., Bloand, P., Mallory, C., Peck, R., and Reeve, V.C., Marijuana and Alcohol: A Driver Performance Study, A Final Report.) A 2001 study evaluating the impact of marijuana intoxication on driving proficiency on city streets found essentially no differences in driving performance after cannabis administration, concluding: “Performance as rated on the Driving Proficiency Scale did not differ between treatments. It was concluded that the effects of low doses of THC … on higher-level driving skills as measured in the present study are minimal.” (Lamers and Ramaekers. 2001. Visual search and urban driving under the influence of marijuana and alcohol. Human Psychopharmacology 16: 393-401.) Similarly, a 1993 trial funded by the National Highway Traffic Association (NTHSA) evaluated subjects’ driving performance after cannabis inhalation in high-density urban traffic. Investigators reported, “Marijuana … did not significantly change mean driving performance.” (US Department of Transportation, National Highway Traffic Safety Administration. Marijuana and Actual Driving Performance: Final Report. op. cit.)

There is no Correlation between SFST’S and Marijuana Impairment

There have been minimal scientific studies on the correlation of marijuana impairment and field sobriety tests like there has been for alcohol. The Standardized Field Sobriety Test (SFST) endorsed by the National Highway Traffic and Safety Administration (NHTSA) consists of the horizontal gaze nystagmus (HGN), walk-and-turn (WAT) and one-leg stand (OLS). According to NHTSA, standardized field sobriety tests (SFSTs) do not measure driving impairment. These tests were designed to help an officer estimate a driver’s alcohol concentration and establish probable cause to arrest based on their prediction of an alcohol concentration. (DOT HS 808 839, Final Report, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent.) Roadside tests are not relevant to the question of whether a driver was impaired or affected to safely operate his vehicle due to alcohol or drug consumption. They are only relevant to answer the legal question about whether or not an arrest was lawful. When an Officer says you failed the field sobriety tests in a marijuana DUI case, it doesn’t mean anything scientifically.

Drug Recognition Exams (DRE) are non-Scientific

Several doctors have testified to the non-scientific nature of the 12-step process by which DREs evaluate impaired driving suspects. One doctor stated that when he reviewed the DRE program, he could not find a single peer-reviewed study of the program in any scientific literature. Further, this doctor said he believed that testimony based on DRE evaluations would be inaccurate and could lead to wrongful convictions. Another doctor testified that there was no evidence to show that DREs could distinguish between drug induced impairment and a medical condition. An officer trained in drug recognition is not qualified to make a medical diagnosis, and a symptom of a medical problem or sickness could easily be misinterpreted as a symptom of drug use.

Marijuana Impairment is Difficult to Prove with a Blood Test

It is difficult to establish a relationship between a person’s THC blood concentration and impairment. Concentrations of marijuana and its metabolites vary depending on the pattern of use and dose. Chronic users can have plasma levels of 45 ng/ml of the active metabolite (11-Hydroxy THC) up to 12-hours after use. NHTSA concedes that it is inadvisable to try to predict the effects of marijuana based on blood THC concentrations alone, and that it is currently impossible to predict specific effects based on 11 Hydroxy THC concentrations.

Delta-9 THC is active metabolite. Most of the psychoactive effects of cannabis come from Delta-9 THC. The usual peak levels in serum for 1.75% or 3.55% THC marijuana cigarettes is 50 to 270 ng/ml at 6 to 9 minutes after beginning smoking, decreasing to less than 5 ng/ml within 2 hours. Passive inhalation is up to 2 ng/ml in most cases.

Delta-9 Carboxy THC is inactive metabolite. Usual peak levels in serum for 1.75% or 3.55% THC marijuana cigarettes: 10-to-101 ng/ml about 32-to-240 minutes after beginning smoking, with a slow decline. Delta-9 Carboxy is typically not detectable through passive inhalation.

11-Hydroxy THC is active metabolite. Usual peak levels are less than 10% of THC levels after beginning smoking.

Duration of Effects: Effects from smoking marijuana are felt within minutes and reach their peak in 10-30 minutes. Typical marijuana smokers experience a high that lasts approximately 2 hours. Most behavioral and physiological effects return to baseline within 3-5 hours after use

Marijuana Consumption is difficult to prove with a blood test

In cases where the active ingredient of Marijuana (Delta-9 THC) is not detected in blood samples, nor is the active metabolite (11-Hydroxy THC) detected, and only the inactive metabolite, Delta-9-Carboxy, is detected, an inference arises that the person had consumed Marijuana between 12-and-24-hours prior to having their blood drawn.

You don’t have to plead guilty, contact our office today for a free same day consultation

Because you have so much to lose, you need the most experienced and aggressive Marijuana DUI Defense attorneys on your side. Whether it’s defending you in trial or negotiating for dismissal, you can count on us. Our experienced and aggressive negotiating efforts usually result in better outcomes for our clients including reduced charges, lesser jail days, and smaller fines. Call our office today at (916) 939-3900 to speak directly to an attorney about your Marijuana DUI case. We are open 24/7/365 to answer your questions.