In California, it is illegal to operate a motor vehicle under the influence of any substance, lawfully possessed or not, if the substance used causes physical or mental impairment that makes a person unable to drive safely. Most commonly, California DUI statutes are applied to those driving under the influence of alcohol but not exclusively. The law covers all controlled substances, including marijuana, as well as, contrary to some common misconceptions, perfectly lawful substances such as a long list of prescription drugs available on the market today. Medical marijuana users must be aware that they are not exempt from DUI laws by reason of their medical status.
In California, first time DUI offense prosecuted under §23152(a) is a misdemeanor punishable by maximum of 6 months in county jail, a fine between $390 and $1,000, mandatory alcohol program, suspended or restricted license and 3 year probation. If the prosecution involves a person under 21, conviction will result in 1 year license suspension. If the impaired driving results in bodily injury or death, even the first time offense can be prosecuted as a felony punishable by imprisonment in state prison.
Fora skilled lawyer, itis easier to defend marijuana-related DUI cases than cases where alcohol is involved. In drunk driving prosecution, the defendant is presumptively guilty when the blood alcohol level is 0.08 percent or more. By contrast, there is no set legal threshold - no "guilty" standard for the THC level detected in the defendant's system - for when a person is presumptively impaired when using marijuana. This lack of a bright line standard makes it more difficult for the prosecution to prove their case. In addition, an effective, diligent and knowledgeable attorney can often defend these cases successfully by relying on experts and various studies showing lack of scientific agreement on when marijuana causes impairment. Scientific and expert literature on the subject contains data that there is no impairment if the ingestion took place more than 2 to 3 hours before driving. Among the best defense tools is the government's own National Highway Traffic Safety Administration of the U.S. Department of Transportation which in 2003 published a cannabis safety study concluding that any effects from using marijuana dissipate quickly after one hour! Also potentially available, although not always advisable, is the so-called heavy user defense based on the idea that heavy use builds tolerance to impairment.
A good criminal defense lawyer will often exploit the lack of sophistication, and sometimes simple incompetence, of prosecution's testing laboratories. Test results often will reveal nothing more than the presence of marijuana metabolites without having differentiated between various kinds. Metabolites are byproducts created after metabolization. They might or might not be psychoactive and they are not the same as the active drug. The tests might not be able to distinguish between, for example, the highly potent 11-OH-THC metabolite and the non-psychoactive THC-COOH (carboxy THC) which is marijuana's primary metabolite and which does not cause impairment. Presence of nonactive metabolites does not indicate either impairment or recency or frequency of use.
Note, however, that presence of marijuana would not make your case easier if you also consumed alcohol, even at less than 0.08 percent blood alcohol level necessary for a conviction for alcohol related drunk driving. It has been shown, and the prosecution will most certainly argue, that using both alcohol and marijuana significantly increases potential for impairment.
Law Offices of David S. Chesley, Inc.
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Sherman Oaks, CA 91403
Additional offices in the Counties of Los Angeles, Orange, Riverside, San Bernardino, San Diego and Ventura.