Marijuana and California DUI Law

handcuffs-marijuanaAB 2500, authored by California State Assemblyman Jim Frazier, is a proposed amendment to California’s DUI statute, Vehicle Code § 23152, et. seq.  The bill proposes the addition of a new “f” count, which states, “It is unlawful for a person to drive a vehicle if his or her blood contains any detectable amount of delta-9-tetrahydrocannabinol of marijuana or any other drug classified in Schedule I, II, III, or IV under the California Uniform Controlled Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).”  What does this mean?  Essentially, it would be unlawful to drive a vehicle in California with any detectable amount of THC, or any of the other enumerated substances, regardless of whether or not it is psychoactive. 

With regard to marijuana, this proposed amendment becomes particularly problematic.  Most drugs, like cocaine and methamphetamine, are water soluble, and stay in a person’s system for a couple days. Marijuana, on the other hand, is fat soluble, and can stay in a person’s system from a couple days, to up to three months, and in some cases, beyond.  Weight, body fat, amount consumed, and in particular, the frequency of usage, all determine how long a person will test positive for marijuana.

The issue with this proposed amendment is that there is no rational nexus between trying to prevent impaired driving and punishing drivers who are completely sober, but may have used a substance within the past couple days, or worse, the past couple months, and test positive on a drug test.  At its core, it seems as though this proposed amendment seeks to punish those who use marijuana and other substances, under the guise of preventing driving under the influence. 

This is especially disconcerting when you take into account that Vehicle Code § 23152(e) provides that, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.”  Here, the law makes sense because we are punishing drivers who drove “under the influence of any drug,” not drivers who tested positive for a drug.

Although this bill has not yet been passed, it illustrates an alarming trend in perverting the purported purpose of a law, to target specific groups of people. 

Roadside Drug Tests: What You Need To Know

436926-lapd-officer-demonstrating-the-oral-swab-toolStarting at the end of 2013, the LAPD rolled out a new mouth-swab roadside drug testing kit for use at DUI checkpoints.  Well, for 2014, patrol officers now carry these kits as part of their standard issued equipment, so we will undoubtedly see their use rise.  Below is what you MUST know about these tests and your legal rights.

First, these kits test for seven different drugs, but will inevitably be used most on drivers suspected of driving while under the influence of marijuana.  There is no legal requirement that a driver submit to such a test.  Nowhere is it codified that a driver must submit to an oral-swab drug test if they are suspected of DUI for drugs.  However, that will not stop officers from using intimidation, coercion, or outright misrepresentations to try and steer drivers to consent to these tests.

At this point, it’s critical to make an important distinction: oral roadside drug tests are different than the breath or blood sample you are required to give, post DUI arrest.  Failure to give a breath or blood sample, post DUI arrest, can result in a one-year license suspension, under California’s implied consent law, in addition to potential DUI charges.  However, with regard to these oral-swab drug tests, you have the right to refuse them and face no penalty, despite what officers in the field may threaten. 

Given the rise in number of medical marijuana patients and collectives in the state, there are many drivers on the road who are medicated; it is only a matter of time until the legislature acts to address this trend and makes these roadside drug tests mandatory.  However, for the time being, know your rights and recognize that you do have the right to refuse oral-swab roadside drug tests without consequence. 

Understanding Pretext Stops

Scott C Thomas Criminal Defense Attorney Pretext Stops
Ever watched an episode of Cops?  Ever notice how officers will post up outside a house known for drug sales, wait for a customer to drive away, then pull them over for a seemingly miniscule Vehicle Code violation?  What’s the first question the cop ALWAYS asks?  “Got any drugs in the car?”

This is what is known as a “pretext stop,” and according to the US Supreme Court in Whren v. United States and Arkansas v. Sullivan, an officer’s subjective intentions are irrelevant so long as there is probable cause, independent of those suspicions, to believe a crime, no matter how minute, has been committed.  Put another way, once lawfully pulled over, officers are free to investigate any potential unrelated criminal activity.  This was not always the case.  Until these relatively recent decisions came down, these types of tactics were deemed unconstitutional and viewed as a way for officers to circumvent the warrant requirement of the Fourth Amendment.     

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