Marijuana possession is now legal in the state of California. Proposition
64 legalized the recreational use of marijuana for adults 21-years and
older. Prop 64 allows smoking in a private home or at a business licensed
for on-site marijuana consumption. Smoking marijuana remains illegal,
however, while driving a vehicle. This is where the issue arises for a
lot of marijuana users in the State of California. Unlike DUI with alcohol,
which has a statutory presumption of impairment -- .08% blood-alcohol
level or higher, there is no statutory presumption for marijuana impairment.
San Diego police try to confirm the presence of marijuana and other drugs
by using a mouth-swab device, called the Dräger Drug Test 5000 machine.
It is only a matter of time before other cities in the county of San Diego
begin using this machine – El Cajon, Vista, Encinitas, San Marcos,
Chula Vista, Escondido, Carlsbad, Solano Beach, Imperial Beach, Del Mar,
Santee, etc. The machine tests for the presence of seven drugs —
marijuana, cocaine, opiates, methamphetamine, amphetamine, methadone and
benzodiazepines. This device does not read intoxication levels; a blood
test would have to be taken to reveal that information. Drug Recognition
Experts (DREs), who are officers specially trained to recognize symptoms
from drug impairment, will use various indicators that a driver is under
the influence of marijuana. For example, unsafe driving maneuvers, bloodshot
eyes, or the odor of marijuana.
Of course these “indicators” do not prove that someone is under
the influence of marijuana or how long someone ingested marijuana before
driving. Officers can use these indicators as a basis to request the driver
to perform field sobriety tests, which may include the Dräger test.
These tests should always be respectfully declined.
As with any DUI allegation, there are many defenses, beginning with the 4th amendment’s prohibition against unreasonable search and seizures.
These include the basis for the initial stop of the vehicle; the detention;
and the eventual the arrest, which has to be supported by probable cause.
After these procedural issues are addressed, the science involving marijuana
DUI becomes the focus. Because of the complexities surrounding marijuana
DUI defense, an experienced attorney is paramount. If you have been accused
of DUI involving marijuana, VC 23152(f), contact my office today. We provide
a free consultation.