Can I Get a Marijuana DUI if I Have a Medical Marijuana Card?

San Diego DefendersCan I Get a Marijuana DUI if I Have a Medical Marijuana Card?

In California, with medical marijuana being legal and the decriminalization of pot possession for personal use (it is now not a crime, just a ticket), many people are confused about whether you can get arrested for driving under the influence of marijuana.  The simple answer is, you can.

The Law

It used to be that the law concerning DUI’s said it was illegal to drive a vehicle while under the influence of alcohol or drugs or both.  To try and clarify things, these laws have now been separated.  Vehicle Code section 23152(a) says it is illegal to drive while under the influence of alcohol.  Vehicle Code section 23152 section(e) says it is illegal to drive while under the influence of any drug.  Finally, Vehicle Code section 23152(f) says it is illegal to drive while under the influence of a combination of alcohol and any drug.  To be clear, a “drug” can be any illegal drug, marijuana or any prescription drug whether or not you have a prescription.

As far as marijuana or pot is concerned, if you do not have any alcohol in your system, then it falls under section (e).  If you also had something to drink, then it is section (f).

What Does Under the Influence of Marijuana Mean for DUI’s?

Marijuana DUI’s are far more subjective than alcohol DUI’s.  With alcohol, there is a “legal limit.”  If you drive and are 0.08% or more, that is illegal all on its own, even if you actually are not impaired.  But, with marijuana, there is no set “legal limit.”  That is for two reasons, first, there simply has never been a law passed that sets a legal limit for pot or marijuana.  Second, and the biggest reason no legal limit has ever been set, there is essentially no reliable science to base a limit on.

While there is a fair amount of research that says most people are not safe to drive at 0.08% or more, there is almost no research on driving and being high on marijuana.  I have heard prosecution experts testify that if you have even the tiniest amount of the active ingredient of marijuana in your system, you are unsafe to drive.  That is simply not true.  At the other end of the spectrum, some research has concluded that drivers at a moderate level of intoxication with marijuana, a little high, are statistically safer than your average sober person.

Currently, to be guilty of a marijuana DUI, you have to be so impaired by the marijuana that you cannot drive with the same care and caution of a sober person.

WARNING – Several groups are currently working to get propositions on the California ballot this June seeking to legalize marijuana here.  Some are using the same model used in Colorado, who recently legalized pot.  They set a “legal limit” for marijuana of 5 nanograms of THC-9.  Almost anyone who smokes marijuana, especially if they do so regularly, will easily have 5 nanograms in their blood system if they smoked any time recently, whether they are actually high or impaired or not.  A similar proposed law was defeated in Sacramento in 2014.

How Do They Determine If You Were Too High to Be Driving?

First, the police will look for symptoms of being “stoned.”  They are trained to look for red/watery eyes, an odor of marijuana, problems remember ing things and keeping track of time.  They will make you do field sobriety tests, but, they are of little value in determining if someone is impaired by the pot they used.

Second, they will test your blood or urine to see how much is in your system.  Blood tests for marijuana look to see how much THC-9 is in your system.  That is the primary active ingredient in marijuana that makes someone feel high and could impair them.  The test will also look to see how much of the metabolites you have in your system, primarily THC-11.

Many prosecutors will not even file a pot DUI unless the person had at least 10 nanograms (ng)  of THC-9 in their blood test.  Anecdotal evidence suggests most people would be pretty “high” at that level.  It is also useful to look at how much of the metabolite is present.  The larger the amount of THC-11 as compared with THC-9 means the person is on the downside of the effects of the marijuana.  The bigger the THC-11 compared to the THC-9, the further and further back towards totally sober the person is.

What Should I Do If I Am Arrested for a Marijuana DUI?

Very few lawyers really understand the science, or lack thereof, concerning marijuana absorption, how it affects the mind and body, how it is measured and the research concerning driving.  If you get arrested for a marijuana DUI, it is critical to get a lawyer who does.

Medical Marijuana Cards

Whether or not you have a medical marijuana card or not really doesn’t affect a marijuana DUI case.  It could help in negotiations or at trial to show you are used to the effects of marijuana.  But, there is not exception to the law if you have a medical marijuana card.