MARIJUANA DUI DEFENSE ATTORNEY
In Santa Barbara, California, the law makes driving under the influence of drugs illegal under vehicle code VC 23512(f). As marijuana is classified as a Schedule I narcotic, VC 23152(f) also makes driving under the influence of cannabis illegal. Unlike alcohol-related DUIs, however, a marijuana-based DUI has fewer obstacles to overcome in proving innocence, as there is no “per se” limit of THC.
If you have been arrested for driving under the influence of marijuana, it does not automatically mean that you are guilty. It’s important to vigorously fight a DUI charge because a criminal conviction will stay on your record and can adversely affect job and educational opportunities down the road.
As a former Prosecutor for the District Attorney’s Offices in both Santa Barbara and San Diego Counties, Sanford Horowitz and our legal team will offer you a free consultation, investigate the evidence against you, and recommend practical steps to achieve the best possible results in your case. Call now to get started: (805) 749-5670.
California Vehicle Code VC 23152(F)
VC 23152(f) is the subsection of the California vehicle code dealing with driving under the influence of mind-altering substances, including alcohol, and deals specifically with drugs. VC 23152(f) simply states:
“It is unlawful for a person who is under the influence of any drug to drive a vehicle.”
Definition of a Drug
According to the Judicial Council of California Criminal Jury Instructions, the definition of a drug is as follows:
“A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.”
More specifically, the Drug Enforcement Administration (DEA) classifies marijuana as a Schedule I drug, along with heroin, LSD, ecstasy, methaqualone, and peyote.
Definition of a Motor Vehicle
California law specifically defines a motor vehicle as any self-moving means of transportation meant for driving on highways or streets. The definition includes traditional modes of transportation such as cars, vans, and trucks, as well as mopeds, motorcycles, and all-terrain vehicles; however, it excludes motorized wheelchairs and similar devices used by people with physical disabilities.
Operating a bicycle while under the influence (VC 21200.5) or boat (HNC 655(b)) is also illegal.
Evidence Prosecutors May Use Against You
When an officer pulls you over for suspicion of driving under the influence, there are a number of methods they will use to determine whether or not you are intoxicated. These include:
- Using blood, urine, or saliva tests
- Conducting Field Sobriety Tests (FSTs)
- Calling on a Drug Recognition Expert (DRE)
- Looking for physical signs of intoxication or other forms of circumstantial evidence
Drug Tests for delta-9-tetrahydrocannabinol (THC) and cannabis metabolites
When suspected of driving under the influence, an officer will offer the choice of a breath test or a blood test. If you opt for a Breathalyzer and the results are negative, the officer can require you to take a blood test – but only if there is reasonable suspicion of drug use.
A blood analyst can test for the presence of THC directly; however, blood tests are often unreliable, as THC metabolizes, or breaks down, much quicker than alcohol. Blood tests cannot be relied upon to determine the level of THC in your bloodstream at the time of driving.
Additionally, THC is fat-soluble, meaning it can linger in your system for up to a month after initial consumption. Someone can be perfectly sober while driving but return a positive result from a THC blood test.
After consuming cannabis products, your body will break down the main components, such as cannabidiol (CBD) and THC, into inactive components called metabolites. Unlike a blood test that looks directly for THC, a urinalysis can only measure the concentration of metabolites present in a suspect’s urine.
Urine tests are incredibly unreliable at determining intoxication while driving for two reasons:
- CBD, the non-psychoactive component of marijuana, breaks down into metabolites that can trigger a false positive.
- Urine tests can only show that some form of cannabis product, whether a high-CBD/low-THC product or vice versa, was consumed at some point – it cannot reveal the specific type of product used or when it was taken.
Oral swabs or saliva tests are implemented in select counties across the US, including Los Angeles. For now, however, saliva tests can only be used as a preliminary measure, as they are not yet deemed admissible in a court of law. If you are subjected to an oral swab that yields a positive result, an officer may arrest you and force you to take a blood test.
A saliva test can be conducted at the scene. While the test is more precise in indicating recent use to within a few hours, an oral swab cannot prove impairment.
It is important to note that a prosecutor does not need a positive chemical test to prove you were “high” on marijuana while operating a motor vehicle.
During an arrest, an officer will make other observations, which are often subjective, that can be used to convict you with a DUI of marijuana, including:
- Your performance on a field sobriety test (FST)
- What you say to the officer
- Your behavior and driving pattern
- Physical symptoms of impairment, including rapid heart rate or breathing, enlarged pupils, red eyes, dry mouth, and slow reaction times
- The presence of a marijuana smell, cannabis products, and drug paraphernalia
During the time of the traffic stop, an officer may also call in a Drug Recognition Expert (DRE), who is trained in examining an individual for any signs of drug abuse or intoxication. They can be called on to testify against you during trial.
If you’d like to schedule a consultation about your case, call (805) 749-5670 or fill out a contact form.
Fighting a Marijuana DUI Charge
There are several strategies your lawyer can use to defend you against a DUI of marijuana charge. Here, we’ll look at the most common and successful defenses.
Individual Was No Longer Affected by Marijuana Consumption
THC can linger in the user’s system long after the pharmacological and psychoactive effects have worn off. Therefore, a saliva, blood, or urine test can only show that cannabis was used, not the exact time it was used.
THC metabolites can persist in a non-habitual user’s system for hours or even days and in a chronic user’s for a month or longer.
As an example, consider a person named Sally, who smokes medical marijuana three to four times per week before bed for chronic back pain. Sally might go to sleep at 11 p.m. and start her commute to work at 8 a.m. The effects of smoking marijuana generally last around 1 to 3 hours after consumption but can linger up to 8 hours. Although medical marijuana is not a defense against DUI, the effects of smoking cannabis would have long worn off; however, since Sally is a habitual user, a blood test or urinalysis would likely yield a positive result, even if she was unimpaired while driving.
Marijuana Use Did Not Cause Impairment
Although there is a set blood alcohol concentration (BAC) limit, California law has yet to set a “per se” limit on the amount of THC that can be present in a person’s blood at the time of driving. This means the burden of proof rests on the prosecutor, who must prove beyond a reasonable doubt that the driver’s marijuana use led to unsafe driving behavior.
Consider the following example: a person named Hank is pulled over for a routine traffic stop. Hank smoked a small amount of marijuana about four hours ago, but the cop can still detect the odor of cannabis on Hank’s clothes. Hank volunteers for a blood test, which detects about enough THC to indicate recent use. The officer did not observe signs of erratic or dangerous driving patterns but arrests Hank anyways. An effective California DUI attorney will make it absolutely clear that there is a lack of consensus among lawmakers and the scientific community regarding the relationship between the amount of THC present in someone’s blood and driving impairment.
THC Tests Were Flawed
Legal Penalties for Marijuana Duis
Marijuana DUIs are subject to the same penalties as alcohol-related DUIs. The severity of the penalties will vary depending on several factors, including:
- Previous DUI convictions within a 10-year period
- Resulting property damage
- Whether the incident involved victims suffering injury or death, and/or
- Any aggravating factors, such as having a minor under the age of 14 in the vehicle (VC 23572) or speeding (VC 23582) while driving under the influence of marijuana
It is important to note that although recreational and/or medical marijuana is legal in many states, such as California, driving while “high” on marijuana is illegal.
The first three marijuana-related DUIs within a 10-year period that did not cause harm to others are likely to be charged as misdemeanors.
Here’s a breakdown of the possible penalties associated with each successive misdemeanor marijuana DUI charge incurred within 10 years:
First misdemeanor DUI within 10 years:
- 3 to 5 years informal, or summary, probation
- 6-month suspension of driver’s license or a restriction of driving privileges
- Potential 48 hours to 6 months in jail at the judge’s discretion
- $390 to $1,000 fines, in addition to penalty assessments
- 3 months of DUI school totaling 30 hours
- Attendance at Victim Impact Panel
Second misdemeanor DUI within 10 years:
- 3 to 5 years summary probation
- 2 years suspension of driver’s license or restriction of driving privileges
- 96 hours to 1 year in jail or possibility of house arrest
- $390 to $1,00 fines, in addition to penalty assessments
- 18 to 30 month DUI course
Third misdemeanor DUI within 10 years:
- 3 to 5 years summary probation
- 3 years suspension of driver’s license or restriction of driving privileges
- 120 days to 1 year in jail, with minimum sentence set at 30 days with probation and 30 month DUI course
- $390 to $1,000 in fines, in addition to penalty assessments
- 30 month DUI course
A DUI that results in injury may be charged as a misdemeanor and will carry the following penalties:
- 1 to 3 years revoked license
- At least 5 days in jail or up to 1 year
- $390 to $5,000 in fines in addition to restitution to injured victims
- 3, 18, or 30 months of DUI school
A prosecutor will likely hit you with felony DUI charges if the incident involves severe injury or death to other parties, your record shows prior DUI felonies, or if this is your fourth drug or alcohol-related DUI offense within 10 years.
Felony DUI charges may include:
- 4 years license revocation
- 16 months, 2 years, or 3 years in state prison
- $390 to $1,000 in fines
- 18 or 30 months DUI school
Felony DUIs involving injury to others may include:
- 5 years license revocation
- 16 months to as many as 16 years in state prison
- $1,015 to $5,000 in fines in addition to victim restitution
- 18 or 30 months DUI school
Felony DUIs of marijuana involving death may also carry felony manslaughter or murder charges.
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A former prosecutor, Sandy is a skilled litigator who understands both sides of the criminal justice system, which is a tremendous asset. While we hope never to be in a similar situation again, we can recommend Sandy without hesitation.- Ann S.
A great relief and reassurance to anyone potentially facing criminal charges.- S.A.
To say that Horowitz is a great lawyer is an understatement. I would highly recommend him to anyone dealing with a legal issue.- Haley S.
In addition to being highly intelligent and professional, he is incredibly empathetic and kind, which helps when dealing with life’s unpleasant situations.- Eli S.