The sale, possession, and recreational use of marijuana is officially considered legal in the state of California. Proposition 64 came into effect on January 1, 2018, and California joined the likes of Alaska, Oregon, Washington, Nevada, Colorado, Maine, and Massachusetts (Michigan, Vermont, and Washington, D.C. have joined the list since then).
However, whatever the reason for using marijuana – whether medicinal or recreational – driving under its influence is still a criminal offense.
Naturally, the laws that govern alcohol DUIs differ from those that govern marijuana DUIs. And with the laws, the methods of deducing impairment differ as well.
Legal Limits for DUI in California
Alcohol-related impairment is determined with a breathalyzer test. A driver with a Blood-Alcohol Concentration (BAC) level of 0.08% or above is considered alcohol-impaired and in violation of California Vehicle Code 23152(a) and 23152(b).
The legal limit for drivers younger than 21 years old is a BAC of 0.01%, while the limit for drivers operating commercial vehicles is 0.04%.
The laws of the first 2 states to legalize the recreational use of cannabis – Colorado and Washington – specify a limit of 5 nanograms of THC (the principal constituent of marijuana) per milliliter (5ng/ml) of the driver’s blood, above which the driver is liable to prosecution.
The main problem with marijuana legal limits is this: THC is fat soluble, and a regular smoker could exhibit a level of THC in their blood higher than 5 ng/ml even if they haven’t smoked for a week. As a result, a driver could be prosecuted regardless of whether they were impaired while driving or not.
Conversely, a first-time smoker could exhibit zero THC in their blood even if they just smoked prior to driving.
What differentiates those states from California is that California marijuana law doesn’t define a legal limit for the amount of THC found in a driver’s bloodstream.
The Arrest Procedure for a Marijuana DUI
Legal limit or not, a police officer’s reason for pulling a driver over is the same everywhere – suspected impairment through observations of poor driving (skipping traffic lights, weaving etc.)
Subsequently, the officer administers a breathalyzer test to determine the individual’s BAC level. The officer may also check for telling signs or smells that suggest intoxication.
If the breathalyzer reads zero but the officer suspects driving impairment caused by drugs, and there is enough circumstantial evidence to suggest as much, it can lead to a DUI arrest.
The suspect is then handed over to a Drug Recognition Expert (DRE).
The Role of a DRE
Law enforcement agencies know the challenges of identifying the symptoms of intoxication by drugs, especially when the human body reacts to each drug differently.
As a result, they have started to rely on Drug Recognition Experts. DRE’s are officers specially trained to test and determine drug intoxication in individuals.
The DRE training program was first started by the LAPD but is now run by the California Highway Patrol (CHP).
In case of a marijuana DUI arrest, the DRE is trained to perform a 12-step evaluation of an individual suspected to be cannabis-impaired:
- A breath test
- Interviewing the arresting officer
- A preliminary examination and first pulse check
- An eye examination
- Divided attention tests
- An examination of vital signs and second pulse check
- An eye examination in a dark room
- A muscle tone examination
- A check for injection sites and third pulse check
- The interrogation of the suspect
The 11th step involves a DRE using his/her experience and training to provide an opinion about the suspect’s impairment and the charges they should face.
The last step is a Toxicological examination, but this is usually done weeks after the initial arrest.
In conclusion, California doesn’t have a legal limit when it comes to analyzing THC levels in a driver’s bloodstream. However, that limit is unnecessary since DUI arrests are based on observed impairment and an officer’s professional judgment.
If you find yourself arrested for driving under the influence of marijuana, you should consult with a DUI attorney with extensive experience in handling these types of cases.
