Recently, Proposition 64 was passed in the state of California. This allows for the use of recreational marijuana for individuals over the age of eighteen. With this new freedom comes the need for understanding the laws surrounding Prop 64. This can be especially important when driving. Many of the laws surrounding Driving Under the Influence (DUI) are just a serious when it comes to marijuana use as when dealing with alcohol and drunk driving charges.
Marijuana can cause drowsiness, lack of memory function, sensory impairment, and mood changes. Marijuana use and its effects can vary among its users. With such a variance amongst its users, testing for marijuana and proving guilt in DUI cases involving marijuana is a difficult task.
The testing for marijuana is quite vague and often inaccurate. There is not an objective test for impairment due to marijuana. Therefore, determining what level of marijuana impairment one is under is next to impossible. With alcohol consumption, we understand that the blood alcohol level can be tested for and there is a legal limit. In California, there is no specific level of delta-9-tetrahydrocannbinol (THC), which is considered illegal. THC is the active ingredient in marijuana, and it can stay within the system of some individuals for a whole month after one use. This makes testing for marijuana even more of a controversial issue. There is no specific way to detect marijuana in one’s system. Plus, it is still in question how much if any amount of marijuana specifically impairs your ability to operate a motor vehicle. For example, if you used marijuana on a daily basis and suddenly quit, the THC can still be present in your system for over a month after. Alcohol is subjected to “per se” laws that are to keep a driver’s alcohol content from reaching a particular level. Unlike Colorado and Washington, California does not have a law that states that 5 nanograms of THC is linked to impairment. Even knowing this, remember that you can still be charged based upon other evidence that you were impaired. So, marijuana arrests in California tend to be more subjective from one police officer to the next, and can lead to injustice in a great number of cases.
All California motorists must submit to chemical testing of their blood alcohol level if the police officer has probable cause to think you were driving while being under the influence of drugs or alcohol. A refusal to testing can then be used against you in the prosecutor’s argument at trial. Usually prosecutors will do this to show that you were aware of your guilt and you refused testing because you knew you would fail. Many times, refusing to be tested will leave you at minimum with a suspended license. Other times the consequences are far worse. Remember that chemical testing is not the only evidence of impairment. A driver’s conduct while behind the wheel and their demeanor with the officer can be considered evidence. Any odors of marijuana or witness statements can also be used as evidence of impairment. A driver will often be given field sobriety tests and their results will be used as proof of impairment. Certain law enforcement officer’s known as DREs (Drug Recognition Experts) are trained to look for specific signs of drug impairment. These usually include, dilated pupils, red eyes, fast heart rate, and rapid breathing. When an officer feels they have probable cause to think you are impaired, then they will ask to test you. If you take a breath test and it is negative, the officer can still ask you to take a blood test. The officer can only do this if they believe that you are under impairment from a drug.
Blood and breath testing may detect THC within your system but it is more important to remember what the tests do not reveal. With these tests, it is not possible to reveal when marijuana was used last. Even someone who used marijuana over three hours from the time of testing could still have it present in their system, yet not be impaired. These tests are also unreliable because there is no scale as to how much the individual smoked or ingested before being tested. Also, there is no general consensus on exactly how much marijuana in your system indicates being impaired. Marijuana is fat soluble, which means it can remain in your body for many hours or days after its use. If you are a chronic marijuana user, then it can remain in your system for up to 30 days.
Urine tests are usually administered to hemophiliacs or those that are unable to have their blood drawn. Urine tests are not often used in marijuana testing for they are considered to be even less reliable than blood tests. Urine tests only pick up the inactive metabolites within THC, which are the particular components that stay in the body for 30 days. These inactive metabolites are left behind long after the psychoactive effects of marijuana have passed. Urine tests also pick up the presence of THC-cannibidiol which is the non-psychoactive component within marijuana.
Saliva tests are more popular in other countries than in the states. Saliva tests that are administered on the roadside generally degrade by the time they make it into the lab. Currently, California does not recognize saliva testing as admissible evidence within the court. Saliva tests are only allowed to be used by officers on the scene to make further inquiries. Often a saliva test will be given to aid in assessing if a driver should be asked to take a blood or breath test.
Some studies show that marijuana use does impair driving, while many others are not so conclusive. In most research that indicates impairment from marijuana, the risk of causing an accident while driving was doubled. Alcohol consumption and driving increased the risk of an accident by twenty times in many groups. Some studies even explained that drivers that had used marijuana before driving were more cautious and drove slower. Driver’s that consumed alcohol before driving were more erratic and tended to speed more. Marijuana impairment and the chemical testing of it are very subjective and tend to vary from case to case. It is important to understand the law and speak with a professional attorney if you are ever involved in a marijuana DUI case.
Gaining an experienced and knowledgeable attorney to defend you and your marijuana DUI charge is crucial. A competent attorney will recognize that a positive marijuana test does not necessarily mean impairment. THC can be recognized in the system up to 12 hours after use, which is long after its effects have dissipated. A good attorney will be prepared to fight against the prosecution, using legal factors that were not drug related to explain what lead to your arrest. Many times, attorneys can prove that their client was given a flawed test. There are many reasons that someone may not perform well, even while sober for certain field sobriety tests. Anxiety, stress, and fatigue can all be reasons that one may not perform well on a field sobriety test. The technician that administers any blood, urine, and saliva tests is human. Humans make mistakes, and the technician is capable of making them while handling your sample. A good attorney will look into all of these defense scenarios and go over all the legal aspects of your case.
Our skilled California DUI attorneys are up to date with all the new laws and local marijuana impairment cases. We pride ourselves on being ahead of the curve and we are always looking out for our client’s best interests. Please call our office today with any questions or set up a free consultation with one of our talented attorneys.