San Diego Marijuana DUI Attorney


A marijuana DUI is a serious accusation to face, even though marijuana is now legal in California. A conviction for a marijuana DUI will land you a permanent criminal record, potential jail time, expensive fines, and other long-term consequences. An experienced San Diego Marijuana DUI defense attorney can help you minimize the penalties and charges you face.

Many people assume that “driving under the influence” only refers to alcohol, but driving while under the influence of any drug or substance that alters your ability to properly concentrate on the road— including marijuana— is illegal. While some research has indicated that driving while under the influence of marijuana may not be as detrimental as driving drunk, the fact is that marijuana still can impair your ability to drive safely. That’s why driving under the influence of marijuana is illegal in California — even though the recreational use of marijuana was legalized by voters under Proposition 64.

Still, a marijuana DUI can be a very subjective accusation. There is still no accurate test to tell just how impaired by marijuana a driver may actually be. Even a blood test can only tell if a person has used marijuana in the past, not if it is actively impairing cognitive function. For this reason, innocent people are often accused of a marijuana DUI despite no longer being actively impaired.

Understanding a Marijuana DUI With the Help of a San Diego Marijuana DUI Attorney

Under California Vehicle Code §23152, driving is illegal when:

  • Under the influence of marijuana,
  • Under the combined influence of marijuana and other drugs or alcohol, or
  • Addicted to a drug, but not in an approved treatment program.

To bring DUI charges, a prosecutor must prove that you had consumed marijuana recently and were still under the effects to the extent that you could not drive with the same level of caution and care as a sober person. They could alternatively prove that you are emotionally and chemically addicted to marijuana to the point that you could suffer withdrawal symptoms. In either case, proof of habitual use—legal or illegal—is not enough.

Establishing Impairment for a Marijuana DUI

Under California implied consent laws, you are required to submit to chemical testing for marijuana if arrested for a marijuana DUI or you face additional penalties beyond those for the DUI itself. Any evidence of drugs or alcohol can be used to build a case against you. Refusing the test can also be used against you in court to prove that you knew you were impaired and did not want to confirm it.

Unlike a DUI associated with alcohol, which is defined as a BAC over .08, though, a marijuana DUI is not very clearly defined. Under California law, there is no “per se” amount of marijuana in the bloodstream that definitively establishes impairment. Simply proving that you have THC in your bloodstream or urine or otherwise in your body through a chemical test is not enough. In fact, the National Highway Traffic Safety Administration advises against drawing conclusions about impairment based on THC blood concentration, because it can be so highly inaccurate.

So how do prosecutors establish impairment? Usually, marijuana impairment must be established using other clues. Some common evidence presented by prosecution at marijuana DUI trials includes:

  • Evidence of an erratic driving pattern
  • Bloodshot, red eyes
  • Poor performance on field sobriety tests
  • The presence of marijuana or marijuana paraphernalia in the car
  • An odor of marijuana still on your person
  • Incoherent speech or statements to police
  • Dilated pupils
  • Rapid heart rate or breathing
  • Slowed reaction time

Often, this evidence is collected by a police officer who is a “Drug Recognition Expert” (DRE). They are specially trained to recognize and record signs of drug impairment. An experienced California marijuana lawyer knows how drug recognition experts are trained, what tests they typically use, and what procedures they must follow, allowing these attorneys to discover potential flaws in the process or conclusions of the DRE.

Consequences of a Marijuana DUI

The penalties of a marijuana conviction can be severe, and they get worse depending on whether or not you have previous convictions for any kind of DUI.

  • First conviction: You can be sentenced to 96 hours to six months in jail, a fine of between $390 and $1,000, and a driver’s license suspension of up to six months. You may also have to use an ignition interlock device for a period of time after regaining your license.
  • Second conviction: You can be sentenced to 90 days to one year in jail, a fine of between $390 and $1,000, and a driver’s license suspension of up to two years if the second offense is within seven years of the first conviction. You may also have to use an ignition interlock device for a period of time after regaining your license.
  • Third conviction: You can be sentenced to 120 days to one year in jail and pay a fine of between $390 and $1,000 if the third offense is within seven years of the other convictions. You may also face a longer license suspension or have it revoked entirely.
  • Fourth and subsequent convictions: You can be sentenced to 180 days to one year in jail and pay a fine of between $390 and $1,000 if the third offense is within seven years of the other convictions. You may also face a longer license suspension or have it revoked entirely.
  • A conviction within 10 years of other felonies: Convictions for DUIs that occur within ten years of a conviction for certain other felonies can lead to a sentence of up to one year in jail, a fine of between $390 and $1,000, a license suspension, and a designation as a habitual traffic offender (even if the charges were unrelated). The prosecution can also suggest other punishments, depending on what the other crime was.

For most DUI convictions, you will also have to complete a Driving Under the Influence rehabilitation course or drug treatment program. This can cost you additional time and money.

In addition to these legal penalties, you can face other long-term consequences. When you have a DUI on your criminal record, it can be more difficult to do basic things like find a job or get housing, since the charge will show up on any background check. Additionally, you may lose financial aid as a student or a professional license in a field like law or medicine as a professional. A DUI conviction can even count against you in future or current custody proceedings.

Defending Against Marijuana DUI Charges

Even if you test positive for marijuana in a chemical test, that isn’t necessarily proof that you were impaired. Habitual marijuana users can still have metabolites of the drug in their systems for days after their last use, yet most highs only last for about three to five hours after consuming the drug. It is the prosecution’s job to show beyond a reasonable doubt that you were actually impaired while driving, which is not always easily done when up against an experienced California marijuana lawyer presenting a reasoned and strong defense.

Common defenses to marijuana DUI charges include the following:

  • The officer had no probable cause for the traffic stop.
  • The officer had no reasonable suspicion to arrest you before administering a chemical test.
  • Your blood was drawn without your consent and without a warrant.
  • The test produced a false positive.
  • You were not high anymore by the time you were behind the wheel.
  • The marijuana was not impairing your driving.
  • The evidence provided by the DRE is biased.
  • Proper police procedures weren’t followed.
  • Your Miranda rights were violated.

It’s important to remember that medical marijuana is not a defense. Just because you are legally permitted to use marijuana does not make it ok for you to use it while driving. You must be able to prove you were not impaired in order to effectively fight marijuana DUI charges. The question is not whether or not you obtained the marijuana legally, but rather whether or not you were driving under the influence. After all, alcohol is legal too. You still can’t legally drink and drive.