By David Ruyle | San Diego DUI Attorney
Most everyone with a driver license should know that alcohol impairment and driving a vehicle is illegal, but what about other substances? The California Vehicle Code (VC), 23152 (e) states that it is unlawful to drive a motor vehicle while under the influence of any drug.
The key word is “any”. VC 23152(f) states that it is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.
Many of us recognize that alcohol is a drug, but our esteemed legislators sought to provide further clarification as to what else can influence driving. Drug driving can be anything from someone who choose to smoke some crystal meth and go on a 72 hour road trip, to a disabled person who is taking prescribed pain medication. Not being a physician, most of us can acknowledge that the purpose of a drug is to alter some part of your body. Some drugs cure diseases and simply make you irritable, whereas others are used for pain management that cause drowsiness. Anything that can alter your state of mind and physical motor skills is enough. A doctor’s prescription or recommendation does not exempt you from driving impaired.
Much like alcohol, people can build up a tolerance for the drugs they consume over time. The effects of one Oxy pill in one person may be different from a habitual user that takes several at a time. Even if you follow your doctor’s recommendation for pain management, there is likely a warning on the prescription bottle to not operate motor vehicles. You are within your legal right to take the prescription meds but not necessarily drive a car.
Behind alcohol, the second most common cause of impairment, in my experience, is marijuana. I am sure that not many of you are surprised since California decided to make it legal for medicinal purposes and fully recreational in 2018. Consuming the finest indoor OG bud may be your legal right to do so under California law but you still can’t Dab and Drive. Having a doctor recommendation for marijuana is much like having a regular prescription for a simple cough syrup with codeine or oxycodone. Both will have effects on your ability to operate a motor vehicle.
It is more difficult for one to determine their own level of impairment with marijuana over alcohol. Alcohol can be measured in ounces from a bottle that has a label with the proof or percentage, marijuana does not. Until the marijuana industry is either mandated or self-regulated it will not be distributed with a reliable measurable system. You may be used to a specific strain of cannabis but if it is grown or harvested in a different environment than a previous purchase the effects will vary. Not all bud is created equal.
The days of having a limited number of cannabis strains and forms of consumption are long gone. Cannabis can now be consumed in many forms from flower to cooking oil, baked goods, popcorn and vape. A strain of marijuana that is consumed in its flower form via smoking will have a different effect than if you ingest it. Without getting into too much science, your body processes tetrahydrocannabinol (THC) differently when it is absorbed through the respiratory system versus your digestive system and absorbed into the liver. THC is absorbed at a faster rate with much greater concentration when inhaled versus smaller doses that are ingested with a stronger and longer psychoactive effect.
Many people that often take edibles don’t feel the effects for several minutes to hours. With a delayed effect, you might get behind the wheel of a car with no effects, get to your destination and then it kicks in. With so many variables that can affect your ability to drive it is best to just not get behind the wheel after consuming marijuana. For how long it is not safe to drive is impossible for me to tell you.
Even though California has legalized marijuana for medical and recreational users it doesn’t mean that you are not in violation of federal law. The Drug Enforcement Administration still classifies marijuana as a Schedule 1 narcotic along with Heroin and LSD, whereas Methamphetamine is a Schedule 2. It doesn’t make much sense but that is an entirely separate discussion. Possession and sales of marijuana is still a crime but when you are driving it is the California Vehicle Code you need to worry about.
The majority of us have contact with law enforcement officers that are sworn to enforce the state laws. This doesn’t stop them from working with a federal officer. In addition, an officer from El Cajon Police Department has just as much legal authority to cite you for possession as an officer from San Diego Police Department does throughout the state. It is not likely to happen since they have their own policies and procedures and raising a jurisdictional argument will only make you look foolish.
Determining if a driver is under the influence of drugs is more challenging to the officer over alcohol, especially if a field sobriety test is refused or not performed. The PAS device, (Preliminary Alcohol Screening), that officers carry in the field only tests for alcohol. An officer must rely on his or her training and experience to look for someone erratically driving to perform a legal stop and then physical symptoms once detained. The officer has a better case for validating an arrest by having more signs of impairment. Once they have enough, to his or her standard, there is probable cause for an arrest.
The most definitive way to determine if you have drugs in your system is to draw your blood, but you need to be arrested first. They can test for almost anything in your blood. Medical experts will debate to the end of time what levels of THC in your blood arises to impairment. You can make a great case to a jury that you smoke weed every day, and you were not impaired, but ultimately your fate rests in the hands of a jury. If you live in a community that embraces marijuana, then you might have an easier time convincing them. I recently was called to jury duty in San Diego and the judge asked if anyone had an objection with the current laws against drugs. I wasn’t surprised to see hands go up.
Do the cops really care about busting people for Marijuana?
In my experience as a former police officer and current defense attorney it mostly depends on your cooperation and attitude with the officer that contacts you. You don’t have to agree or even speak but be respectful. They have a job to do and their goal is to go home safe at the end of their shift. In general, they don’t really want to be tied up with paperwork for several hours for something that will likely end up being a citation. What they care more about is your actions not hurting others if you continue to drive impaired.
Officers really use evidence of marijuana as probable cause to look for something else. A giant cloud of smoke exiting the windows is the most obvious but the burnt odor it leaves also indicates that marijuana was consumed and could impair the driver. It is no secret that marijuana has a real distinct odor, but have you ever considered what an officer is thinking when he or she detects a burnt rope smell versus a sweet floral smell? Burnt odor indicates recent consumption versus a floral smell that you are simply in possession. An officer can even make the argument, that the driver impaired by contact high since it was smoked within the vehicle.
How Should I Transport My Weed?
If you are transporting your marijuana in a vehicle, there are a few things to know. Once again, it is a federal crime and even though we are in California and the laws are conflicting just be aware. Californians first and foremost, until 2018, need to have a doctor’s recommendation. The original embossed certificate bears more credibility than a cheaply laminated ID card. Secondly, transport the marijuana out of the proximity to whoever is driving. The trunk is always best, but if you don’t have one, then use a closed container. Many of the dispensaries will put your marijuana in a brown or white paper bag and staple it for you. If detained with the bag, you have a reasonable argument that you were not consuming but merely transporting in a container not accessible to yourself as the driver. I don’t know many people that drive around in their car with a stapler. It’s not a perfect defense but hopefully, you can see the point that I am trying to make. Finally, limit your possession of marijuana to a reasonable amount you would use that day. It may sound funny, but I have seen clients drive around with several glass jars filled with different strains like they are small trophies. There is no need for that, but it does make a case interesting.
Can I lose my license from driving while under the influence of marijuana?
Your driver license is not a right but a privilege that is granted with your consent to submitting to a chemical test for forensic analysis if lawfully arrested. A forensic chemical test comes in the form of a blood draw by a phlebotomist or a machine known as the Intoxilyzer or Intoximeter. These devices are the size of a small suitcase and typically located at the jail or police station. The machines that you blow into do not measure for marijuana, only alcohol. You have the right to not consent to the blood or breath test, but your license will likely get suspended. If you refuse, the police will get a warrant and restrain you while they draw your blood. Even if they get a sample of your blood after a refusal your license can still be suspended.
Under current California law the DMV will not suspend your license at an Administrative Per Se hearing for having been under the influence of marijuana. Those that are arrested for DUI with drugs often have their license suspended for refusing a test or driving on a suspended license, not being high. It is very possible, in the foreseeable future, that the courts might take further action by suspending your license if the DMV does not.
Each client feels the effect of an arrest, charge and conviction differently. A drug DUI can take a great financial and emotional toll on you. The court is hopeful that of all the things they throw you, something will take. The fines and public work service are manageable but what about circumstances beyond your control since you will be likely be placed on probation? The court may order you while on probation to not consume any illegal drugs including marijuana. You are to remain law abiding for several years and waive your 4th Amendment rights to search and seizure. A 4th Waiver is the number one-way police can get what they are looking for. Your privacy and those with you at the time of detention are all vulnerable. If you re-offend while on probation you could face double the trouble if you pick up a new case.
It’s just not worth it.
Many people feel invulnerable due to their young age or lack of experience. Unfortunately, many clients must experience going to jail, having their car towed, hiring an attorney and going to court in order to learn a lesson. There is nothing more eye opening than being stuffed into the back of a patrol car with cold handcuffs in front of your friends. Furthermore, when you do go to jail you are not treated any different from other inmates because you just got high and drove. If you ever have ever asked yourself, “Am I ok to drive?’, you are likely not. If spending a copious amount of money on court fees and insurance isn’t enough, hopefully hurting yourself or another is enough motivation to call a friend. The courts are forgiving to those that make mistakes, if you do, I am here to help.