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Los Angeles DUI Attorneys California Vehicle Code Section 23152(f) VC Driving While Under the Influence of Marijuana

Legalization of Marijuana and DUI

On November 8, 2016, California voters passed Proposition 64, “the Adult Use of Marijuana Act”, which legalized the possession and use of marijuana for recreational purposes by adults aged 21 and over. The law allows for the possession, use, and cultivation of marijuana in a private home. Specifically, Proposition 64 allows adults 21 and over to legally possess up to 28.5 grams of marijuana and 8 grams of concentrated marijuana. Additionally, of age adults can use marijuana legally at businesses licensed for on-site marijuana consumption.

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While Proposition 64 did legalize the recreational use of marijuana in California, it did not legalize the use of recreational marijuana in every situation. For example, despite the passage of Proposition 64, it is still illegal to smoke or use marijuana while driving a vehicle, anywhere smoking tobacco is prohibited, and in all public places. In fact, one of the major arguments opponents of Proposition 64 made against its passage was that it would endanger the safety of our roads by causing an increase in the number of people driving while under the influence of marijuana.

Despite the fact that driving under the influence of marijuana was always illegal under Vehicle Code Section 23152(f), Driving under the influence of Drugs, the passage of Proposition 64 has caused law enforcement to focus more on making DUI marijuana arrests. The problem with these arrests are that, unlike Driving under the influence of alcohol, California does not have an established standard for being under the influence of marijuana, such as the 0.08% BAC for alcohol. Without a standard more and more innocent drivers are facing arrests for DUI Marijuana and, in turn, suffering unjust convictions.

Therefore, if you’ve been arrested for Driving under the influence of marijuana, having an experienced and aggressive DUI marijuana attorney with a vast knowledge of the law fighting for you may mean the difference between freedom and jail and between keeping and losing your license. At CDI, [our team of DUI attorneys/our founder, Chad Lewin have/has] over (inter # of years) of experience successfully defending clients from DUI charges. If, after reading our comprehensiveanalysis of California DUI laws below, you have questions or would like to speak to a Los Angeles DUI attorney, call attorney Chad Lewin/the attorneys at CDI immediately for a FREE, CONFIDENTIAL consultation at (888) 546-5394. We are available 24 hours a day, 7 days a week to help you.

How is Vehicle Code 23152(f) VC DUI Prosecuted?

As stated above, Driving under the influence of marijuana was already illegal prior to Proposition 64 and remains soafter its passage under CaliforniaVehicle Code Section 23152(f) VC, “DUID” or driving under the influence of drugs. Under California Vehicle Code Section 23152(f) VC, in order to convict you of “DUI Marijuana” or driving under the influence of marijuana, the prosecution must establish the following elements:

  1. You drove a vehicle;AND
  2. While you were driving, you were under the influence of Marijuana.
  1. You drove a vehicle

    The key to this element is that the prosecutor must prove that while you were driving, you were under the influence of marijuana. It is not enough for the prosecutor to just prove that you were under the influence of marijuanawhile inside or near a car.

    Obviously, when you are pulled over while driving, this element is easy to establish. Yet, it is in those situations where a cop does not personally witness you driving, such as when you are found sleeping in a car or a cop responds to an accident site that makes this element more difficult for the prosecutor to prove.

    To deal with these special situations, California court decisions have provided some guidance as to what constitutes driving and what evidence can be used to prove it. California courts have ruled that a “slight movement” of the vehicle is required to establish driving. Additionally, those same courts have stated that, in the absence of direct evidence, circumstantial evidence can be used to prove that “slight movement.” Circumstantial evidence is evidence that shows guilt, not directly, such as an eye witness, but through inferences made from the surrounding circumstances.

    Example:

    Allenwent to a party with friends. At the party, Allen did not drink alcohol, but he did smoke some marijuana offered to him. Despite feeling the effects of the marijuana, Allen decides to drive home, which is 4 miles away from the party. Allen ends up crashing into a tree on his front lawn and exists the vehicle, leaving his engine still running. A cop who didn’t see him drive, but sees his car on the lawn, investigates. The cop believes that Allen is exhibiting symptoms of impairment and asks him to take a breathalyzer. Incorrectly thinking he has no choice, Allen consents and after blowing a .0% BAC, the cop arrests him for suspicion of DUI marijuana or “drugged driving.”

    Allen will likely be found to have driven his car, despite no one, including the cop, actually witnessing him driving. This is because, based on the circumstantial evidence, such as the car being found 4 miles away from the party, on Allen’s lawn with the engine running, and Allen being found alone with no evidence of other potential drivers, the inference can be made that Allen drove his car home.

    Compare with

    Example:

    Same as above, except that, instead of taking marijuana at the party, Allen takes Ambien and instead of driving right away after leaving the party, Allen decides to sleep it off in his car before driving. While sleeping in the back seat, a cop notices Allen’s headlights are on and approaches his vehicle. The cop believes that Allen is exhibiting symptoms of impairment and asks him to take a breathalyzer. Incorrectly thinking he has no choice, Allen consents and after blowing a .0% BAC, the cop arrests him for suspicion of DUID or “drugged driving.”

    It will be unlikely that Allenwill be found to have driven his car, since the circumstantial evidence against him is weak. Specifically, Allen was found sleeping in the back seat of her car, not in the driver’s seat. Additionally, his engine was not on and likely cool to the touch. Lastly, he was found legally parked 4 miles away from his home.

  2. You were under the influence of Marijuana

    Definition of “Marijuana”

    Marijuana refers to the dried leaves, flowers, stems, and seeds from the Cannabis sativa or Cannabis indicaplant. The plant contains the mind-altering chemical THC and other similar compounds. When a person smokes marijuana, THC very quickly enters the bloodstream and is sent to the brain and other organs. THC acts on brain cell receptors that ordinarily react to natural THC-like chemicals. Marijuana over activates the regions of the brain that have the greatest number of these receptors. This action is what causes the euphoric “high” that users feel. Other effects include:

    • altered senses (for example, seeing brighter colors)
    • altered sense of time
    • changes in mood
    • impaired body movement
    • difficulty with thinking and problem-solving
    • impaired memory
    • hallucinations (when taken in high doses)
    • delusions (when taken in high doses)
    • psychosis (when taken in high doses)

    Definition of “Under the Influence”

    Under the California Criminal Jury Instructions, a person is of a drug, such as marijuana, if, as a result of takinga drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

    Unlike DUI bydriving with a BAC of .08% or higher, under Vehicle Code Section 23152(b) VC, there is no comparable threshold for a DUI by marijuana arrest. Therefore, in addition to your physical appearance and driving patterns, the prosecution will also rely heavily on expert witness testimony. Specifically, when an officer suspects you of being under the influence, but there is no evidence that you ingested any alcohol, law enforcement will typically call a drug recognition expert (DRE) to the scene to help determine whether you are under the influence of a drug, such as marijuana.

    A drug recognition expert (DRE) is a law enforcement officer with specialized training in methods and technology involving the identification of drug impairment. Once they are called onto the scene, they take over the investigation to determine whether a suspect is under the influence of drugs. Typically, a DRE will rule out alcohol as the possible substance causing impairment, conduct field sobriety tests (FST’s) with the suspect’s consent, take your vital signs, question you about your drug history, form an opinion about what drug or drugs you may have ingested, and ask you to submit to a chemical blood test or a urine test. Just like the other types of DUI, once you are arrested for DUID, there is implied consent that you will submit to a blood test or a urine test, as the presence of drugs cannot be determined through breath. If you fail to submit to this post-arrest test, your license may be suspended by the DMV for one year.

Defenses to California Driving Under the Influence of Marijuana

  1. Your Driving Pattern was Not Caused by Marijuana

    The jury instructions make clear that the manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of drugs. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.

    For example, you could have made driving errors because you were lost, tired, ill, or had trouble seeing due to darkness or weather.

  2. Your Physical Appearance was Not Caused by Marijuana

    Very similar to the above defense, your attorney may be able to establish that you may have had the physical appearance of a person under the influence of drugs, such as blood shot eyes or a lack of balance, but for a reason other than marijuana.

    For example, you may have had blood shot eyes because you were awake all night working. It could also be that you suffer from allergies or illness or you became nervous and intimated by the cop.

  3. You Used Marijuana Only After Driving

    Whether you were under the influence of Marijuana only matters during the time you were actually driving. If you used Marijuana only after you finished driving, then you cannot be convicted of DUI Marijuana under the language of Vehicle Code Section 23152(f) VC.

    Example:

    Before leaving work for the day, Stacy finds out that a close relative has passed away. Distraught, yet completely sober, she drives home less carefully than usual. All she can think about is how she’ll never see her relative again. As she nears her house, she accidentally crashes into her neighbor’s fence. Stacy leaves her car there and enters her home. Unable to cope with the day she’s having, Stacy begins smoking a “joint”. In the meantime, Stacy’s neighbor calls the police. By the time the police show up to her house, Amber is severely under the influence of Marijuana. Amber comes outside to speak with the police, the DRE believes she is under the influence of marijuana, and she is arrested for DUID.

    Here, Stacy should not be convicted of DUI, pursuant to 23152(f) VC, because, even though she was under the influence of marijuana, she was completely sober during the period of time that she was actually driving. It was only after she finished driving that Stacy used marijuana and became under the influence of drugs.

  4. Field sobriety Tests are Designed to Make you Fail

    Field sobriety tests are not really tests at all. Instead, they are physical agility exercises that are SUBJECTIVE in nature. In other words, the police officer, who already thinks you are DUI because he is giving you the field sobriety tests, is the one who is determining whether you pass or fail each test. The officer is looking for any and every mistake that you make. In fact, many people with absolutely no alcohol or drugs in their system "fail" these tests. Field Sobriety Tests may include any or all of the following:

    • Nystagmus Test
    • Walk and Turn
    • Standing on One Leg
    • Finger to Nose
    • Alphabet Test
    • Rhomberg Balance Test
    • Hand Pat Test

    A skilled DUI defense lawyer can turn your failing these tests into you passing these tests. A lawyer at CDI will know how to cross examine the police officer who administered and “graded” each test and get him/her to admit to all the things you did right. Additionally, a CDI lawyer will attack the validity of the tests and how they were administered.

  5. The Chemical Test was Not Properly Administered (AKA Violation of Title 17)

    The manner in which chemical tests are administered by the police is governed by Title 17 of the California Code of Regulations. If the police violate any of the protocols set forth in Title 17, the test results could be deemed inaccurate and, therefore, the prosecution may not be able to use them against you.

    Title 17 Protocols for DUI Blood Tests

    Under Title 17 of the California Code of Regulations, the police must do all of the following when administering a DUI blood test:

    • Only a qualified individual listed in Section 13354 of Vehicle Code may draw the blood
    • Nothing alcohol-based can be used to sterilize the site where the blood will be drawn
    • There must be the correct amount of unexpired anticoagulant and preservative in the vial with the blood sample
    • The blood sample must be properly maintained

    A violation of any of the above requirements could cause an inaccurate blood test result.

  6. You had no Knowledge of Taking the Drug

    If you had no knowledge of taking marijuana, such as being given a brownie or cookie that you did not know had marijuana in it, also known as involuntary intoxication, your defense attorney can make a strong argument that you should not be found guilty of DUID.

Criminal Penalties for California DUI Marijuana

Under California law, a violation of Vehicle Code Section 23152(f) VC or DUID has the same penalties as a DUI by alcohol and will be counted as a DUI prior for any kind of DUI in the future, whether caused by alcohol or drugs. Like a DUI by alcohol, DUID could be charged as either a misdemeanor or a felony, depending on the specific circumstances of your case and whether or not you have prior DUI or “DUI-like” convictions(see our page on wet reckless).

Generally, most first, second, and third DUIs are charged as misdemeanors, yet the penalties become greater with each subsequent DUI.

The fourth DUI and each DUI after are usually charged as a felony, if you have three or more prior DUI or “DUI-like” convictions within the past 10 years of the current charge. (See our page on Felony DUI based on prior convictions). Additionally, regardless of whether you have any prior DUI convictions at all, if you are DUI and cause injury or death to another, you will face felony charges. (See our page on Felony DUI causing injury or death). Lastly, if you have ever been convicted of felony DUI, each subsequent DUI will be charged as a felony, regardless of how old the felony DUI conviction is. (See our page on Felony DUI based onprior Felony DUI conviction).

If convicted of CaliforniamisdemeanorDUI, you face any or all of the following:

  1. Up to 5 years of Informal probation (see our page on probation)
  2. Up to 1 year in county jail
    1. Minimum of 48 hours if First DUI
    2. Minimum of 10 days if Second DUI
    3. Minimum of 120 days if Third DUI
    4. Minimum of 180 days if Fourth DUI or More (when charged as a misdemeanor)
  3. A fine up to $1,000
  4. Completion of an alcohol treatment program
  5. License suspension of 6 months to 4 years*

*A note regarding the license suspension and why it causes the innocent to take a plea:

Unlike being arrested for Driving under the influence of alcohol, there is no automatic license suspension for being arrested for Driving under the influence of marijuana, and, therefore, no Administrative Per Se DMV Hearing (see our page on Admin per se hearings ). Yet, if convicted of DUI Marijuana in court, the defendant will suffer a license suspension as stated above. Therefore, Los Angeles DUI Attorney Chad Lewin says that:

“In my experience, I see more and more people in court charged with DUI Marijuana, who have no business pleading to anything, taking a deal for the lesser charge of a wet reckless just to avoid the possibility of getting their license suspended, as a conviction for a wet reckless does not carry a license suspension (See our page on wet reckless). Coupled with the lack of a clear standard for being under the influence of marijuana, you can better believe there are many people walking around with a conviction for a wet reckless or a DUI marijuana on their record who do not deserve them.”

If convicted of California felony DUI, you face any or all of the following:

  1. Minimum 5 years Formal probation (see our page on probation)
  2. Up to 4 years in a California State Prison
    1. o Additional prison timeis possible, if the DUI involved aggravating factors, such as great bodily injury to at least one victim or there are numerous injured victims
    2. o Strike if DUI involved great bodily injury to at least one victim
  3. A fine up to $5,000
  4. Completion of an alcohol treatment program
  5. Up to a 5 year revocation of your license
  6. Designation as a habitual traffic offender by the California DMV

Related Offenses

Driving under the influence regardless of BAC(Vehicle Code Section 23152(a) VC)

Under Vehicle Code Section 23152(a) VC,it is a crime for any person who is “under the influence” of any alcoholic beverage, regardless of that person’s BAC, to drive a vehicle. The penalties are identical to those of a violation of Section 23152(e) VC above, but the elements of the crime and available defenses are very different.

For more information, please see our page on DUI regardless of BAC.

Driving with a BAC of .08% or higher (Vehicle Code Section 23152(b) VC)

Under Vehicle Code Section 23152(b) VC, it is a crime for any person to drive a vehicle with a BAC of .08%. The penalties are identical to those of a violation of 23152(e) above, but the elements of the crime and available defenses are very different.

For more information, please see our page on DUI with a BAC of .08% or more.

Felony DUI (Vehicle Code Section 23152(b) VC)

As mentioned above, there are threecircumstances where a person can be charged with felony DUI. Each type of felony DUI has different elements and available defenses.

For more information, please see our pages on Felony DUI based on prior convictions, Felony DUI causing injury or death, and Felony DUI based on prior Felony DUI conviction.

Underage driving with a BAC of .01% or higher(Vehicle Code Section 23136 VC)

This is the least criminal DUI charge. Being charged with Vehicle Code Section 23136 VC isn't technically the same as being charged with a crime. This is because drivers with a BAC between .01% and .05% aren't legally drunk. Also, common medicines that contain alcohol can leave your BAC over .01%. The only penalty for this charge is a one year license suspension.

For more information, please see our page on Underage DUI.

Underage Driving with a BAC of .05% or Higher (Vehicle Code Section 23140 VC)

This is the most common underage DUI charge. Because anyone who gets caught with a BAC of .08% gets charged as an adult. This is the charge that really means "Underage DUI." This charge won't lead to jail time. But, an underage DUI conviction will automatically lead to a one year license suspension and a fine. Drivers 18 to 21 years old charged with DUI also have to attend a mandatory alcohol education program for at least three months.

For more information, please see our page on Underage DUI.

Contact a DUI Attorney at Criminal Defense Incorporated

Our Los Angeles DUI defense attorneys have a long track record of success in DUI cases. Without an experienced and aggressive attorney fighting for you, your conviction could result in the loss of your license and freedom and the destruction of your future. If you've been charged with DUI in California, time is of the essence! Every minute you wait matters, so call attorney Chad Lewin at CDI immediately for a FREE, CONFIDENTIAL consultation at (888) 546-5394. We are available 24 hours a day, 7 days a week to help you or your loved ones.


  1. California Secretary of State, "Initiative Text (#15-0103)
  2. Id.
  3. Id.
  4. Id.
  5. Id.
  6. http://www.latimes.com/local/lanow/la-me-ln-marijuana-dui-20180322-story.html
  7. Vehicle Code Section 23152(f) VC.
  8. People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 8.
  9. Id
  10. https://www.drugabuse.gov/publications/drugfacts/marijuana
  11. Id.
  12. Id.
  13. Id.
  14. Id.
  15. Id.
  16. Council of California Criminal Jury Instructions (“CALCRIM”) 2110 – Driving Under the Influence.
  17. Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2110 – Driving Under the Influence.
  18. Title 17, section 1219.1 -- Blood Collection and Retention
  19. Vehicle Code Section 23153 VC.
  20. Vehicle Code Section 23550 VC.
  21. Vehicle Code Section 23550.5 VC.
  22. Vehicle Code Sections 23536 - 23548 VC.
  23. Vehicle Code Section 23566 VC.
  24. Vehicle Code Section 23136.
  25. Vehicle Code Section 23140.
  26. Id.


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