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Law Offices of Aaron Bortel

In California, if an officer determines that as a result of consuming (whether smoking, eating, or drinking) marijuana a person’s mental or physical abilities are impaired to the point that they are unable to drive a vehicle with the care and caution of a sober person using ordinary care under similar circumstances, then that person can be arrested for driving under the influence of marijuana (i.e. a DUI for marijuana).

Under current law in California, if an officer can determine after an examination of the evidence (e.g. 911 reports, statements, observations, etc.) that someone was in fact driving while impaired, then that person can be arrested and charged with DUI by the prosecutor’s office and could face criminal prosecution in Superior Court.

In addition, the defendant would likely have to request and attend a hearing with the California Department of Motor Vehicles in order to avoid a 30-day driver’s license suspension. A conviction for DUI—whether it involves alcohol, marijuana, or a combination of both—can carry a sentence of up to six months in jail and a fine of about $1,500-$2,000 depending on the county. Three to five years’ worth of unsupervised probation may also be required on a first-offense DUI, as well as a three to six-month DUI school program.

With The Legalization Of Marijuana, Did You See A Jump In 2019 In The Number Of Convictions And Arrests?

After the legalization of marijuana for recreational purposes, I absolutely noticed an increase in the number of marijuana-related DUI cases. Many people had easier access to marijuana and a lot of people who did not have a lot of experience with marijuana started using it. Since it can take a while for the effects of marijuana to kick in, people would think they were not intoxicated and therefore able to drive safely, only to start feeling the effects while driving. In addition, many people who hadn’t used marijuana in many years were not prepared for the strength of marijuana today, which is five or ten times as strong as it was in the 60s, 70s, 80s and 90s. Marijuana affects everyone a little differently, so it’s important for a person to know how it affects them personally, and to wait until the effects have worn off before driving. It should also be known that a person can test positive for marijuana long after they actually consumed it, and this can be used to obtain a marijuana-related DUI conviction.

Law enforcement agents undergo special training to learn how marijuana impairs drivers. Even before marijuana became legal, a small percentage of officers would complete this training to become drug recognition experts (DREs). The DRE training program lasts for seven days and addresses how to conduct drug recognition evaluations for all types of drugs through a 12-step process. Drug recognition experts conduct evaluations of people who have been arrested and brought to the station, where there are no interferences such as wind, uneven surfaces, and flashing lights.

The ultimate goal of this program is to equip officers with the ability to determine whether someone was under the influence of a drug at the time of driving. However, many studies have shown that the percentage of cases wherein an officer is able to correctly determine which drug someone has used is very low.

There’s another type of training called ID training, which requires fewer hours than the DRE program, but is nonetheless being accepted by many courts. It is unclear why there is not a greater push for better training in this regard, especially when people’s constitutional rights are at stake.

The tests used to detect the presence of marijuana have not changed, but some companies are working on devices that can help determine whether there may be marijuana on someone’s breath. These are not evidential tests and are not currently being accepted. However, it is my guess that as soon as the courts are given the opportunity, they will do anything possible to allow for that type of evidence in order to convict people of marijuana-related DUI.

When Someone Is Actually Pulled Over And The Law Enforcement Officers Suspect The Driver Is Under The Influence Of Something Other Than Alcohol, What Is The General Protocol To Determine Whether Or Not They’re Going To Make An Arrest?

One of the main differences between an alcohol-related DUI and a marijuana-related DUI is that in the former, a preliminary alcohol screening test is usually conducted after questioning or interrogation and the balancing tests. If no alcohol is detected and the officer has no indication of marijuana use, then the person may be released. Unfortunately, officers all too often arrest people on a hunch that they are under the influence of a drug.

To determine whether or not to arrest someone for marijuana-related DUI, the police will try to identify certain signs, such as the smell of marijuana, red eyes, dry mouth, slow speech, or an admission of having smoked marijuana.

The field sobriety tests used for the detection of intoxication by alcohol are not designed to interpret whether someone is under the influence of marijuana. However, if someone demonstrates poor balance or doesn’t follow directions on these tests, it could be said that it was due to intoxication by marijuana. With that said, it is very difficult to prove that someone was under the influence of marijuana when there is no objective number to point to, such as a blood alcohol concentration value. It becomes the prosecutor’s job to convince a jury to unanimously agree that someone was driving under the influence of marijuana or narcotics.

For more information on DUI Cases a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 886-6333 today.

Aaron Bortel

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