There is no doubt that THC, the psychoactive compound in marijuana, can result in a person’s intoxication, weakening one’s ability to focus and react quickly. What is in doubt is the best way to ascertain whether someone has crossed that threshold. We know that a person with a blood-alcohol concentration of 0.08 percent or higher can be reasonably judged as intoxicated, based on the science of how we know alcohol moves through the body – very quickly. But this kind of measurement of THC concentration won’t give you an exact answer because the drug is processed through the body at a much slower rate. It remains detectable in the body not just for hours but days or weeks, the concentration level a potential indicator of whether one is a regular user but not an accurate indication that one is too impaired to drive.

Despite this, at least five states have adopted a so-called “per se” law that outlaws driving if one’s blood level of THC exceeds a set amount. Most others, including California, are relying heavily on the training and testimony of “drug recognition experts.” Their methodology includes a series of assessments, including the standard field sobriety test, which might include exercises like the one-leg stand. Civil rights activists in several states have questioned whether DRE training is adequate and whether the program used to validate the results is backed by both the medical and scientific community. The New Jersey Supreme Court is slated to consider one such case in the coming months.

Some reported methods and justifications given by DREs are extremely troubling. Consider, for instance, the “green tongue” standard. USA Today reported that in numerous DUI cases across the country, law enforcement indicated green coating on the suspect’s tongue as an indicator of impairment. This is taught in DRE courses across the world – yet there is no cited scientific basis for it. There is no indication that a green tongue is an indicator of marijuana ingestion, let alone intoxication. In fact, the Washington Court of Appeals ruled in a 2000 marijuana DUI arrest case that the trooper’s reported observation of the driver’s green tongue wasn’t enough reasonable suspicion to rise to the level of searching a vehicle. “…We are skeptical as to its accuracy and find no case stating that marijuana usage leads to a green tongue.” The Utah Court of Appeals reached the same conclusion in a 2004 marijuana DUI case.

A former DRE in Los Angeles said the origins of the green tongue theory came from a 1986 handbook published by the California Highway Patrol, which showed a picture of a “green-coating tongue of a marihuana-hashish smoker.” He was quoted as saying he’s only ever seen one case of a green-tongued marijuana user in his career – on St. Patrick’s Day, when the driver had been smoking marijuana but also drinking green beer.

There are also two peer-reviewed articles that law enforcement agencies sometimes cite – but neither was specifically looking to establish that smoking marijuana causes a green coating on the tongue.

Although this indicator has been listed in law enforcement training manuals as recently as 2015, most stipulate that there should be more than one indicator. Similarly, the smell of marijuana alone is likely an unwise indicator of intoxication, particularly given how many states have moved to legalize the drug.

With more states increasingly legalizing marijuana for recreation, we’re likely to see an increase in marijuana DUI cases. A recent study by the AAA Foundation for Traffic Safety indicated there are a growing number of crashes involving drivers who test positive for marijuana after a state legalizes a drug. We must consider that with legalization, the overall population of drivers would show higher rates of those testing positive for the drug – because it’s more readily accessible. However, we must bear in mind again that testing positive for the drug doesn’t automatically mean the driver was impaired.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Smoking weed: When is someone too high to drive? Jan. 3, 2020, Kaiser Health News

One of the main problems is the lack of a reliable quantifiable standard to gauge intoxication. With alcohol, adults over 21 in all 50 states are considered impaired by alcohol if their blood concentration of the substance is 0.08 percent or higher. This is called the per se limit.

As our marijuana DUI defense lawyers can explain, there is no per se limit for marijuana in California or in most other states, whether the drug is legal or not. Even in states where there is a per se limit, such evidence can be vexing for prosecutors because it’s undeniably inaccurate when it comes to actually proving intoxication. Unlike alcohol, which dissipates very quickly from the bloodstream, THC (the intoxicating element in marijuana) is processed much slower by the body. A person may have used the drug the day before – or use it regularly – and no longer be intoxicated, but still meet the per se threshold.

The other issue is that because marijuana is legal, the mere smell of it is no longer enough to form the basis of reasonable suspicion necessary to conduct a search of a vehicle and/or person.

Bruce Landsberg, vice chairman of the National Transportation Safety Board, stated these aspects of marijuana legalization has raised the concern that our roads may no longer be as safe. The fact is, he said, we understand less about cannabis’ intoxicating properties – and how to accurately measure it biologically – than we do alcohol. This has resulted in practical concerns in terms of enforcement.

Enforcing California Marijuana DUI Law

In California, Vehicle Code 23152f prohibits anyone from driving under the influence of drugs. Proving it in court, however, can be another matter altogether.

Police agencies have expressed worry that absent any quantifiable standard to measure cannabis intoxication, those arrested for driving under the influence of it will be rejected by the courts. In fact, as our Los Angeles marijuana DUI lawyers can explain, this has happened in a number of cases throughout the country where police officers weren’t experts on assessing the effects of marijuana use.

There are ways to ascertain whether a motorist is impaired by marijuana, including Standardized Field Sobriety Testing. Additionally, officers can be trained as Drug Recognition Experts. But both of these are non-chemical and, in truth, somewhat subjective and open to interpretation in court. Plus, DRE training can be costly and not every agency can afford it. Ultimately, the science has not been developed yet to determine what THC level in a person’s body can definitively tell us whether someone is intoxicated – and we may never have it, given that one’s body chemistry and personal tolerance vary so significantly.

Even if an accurate per se limit could be identified, the reality is there is no accurate roadside test to detect it. There are some devices on the market, but they have been successfully challenged in court cases. A California company does plan to release a THC-detecting breathalyzer on the market sometime next year, but again, the presence of the drug alone isn’t proof positive of impairment.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Feds worry about catching those driving while high in states that legalize weed, By Jonathan D. Salant, NJ.com

Los Angeles marijuana lawyers know there has been an uptick among local law enforcement citations for smoking in public areas, particularly those nearby to schools, parks, restaurants, shops and in cars or boats. (No, you cannot light up in a car, even if you’re a passenger.) Police say many individuals aren’t familiar with this provision of the law, and even visitors who have come to the state on vacation end up leaving – well, not on probation, but with wallets $100 lighter. That’s the fine for public marijuana smoking in California.

Common areas in apartments and even balconies are forbidden spots for outdoor pot smoking, though that usually goes unchecked unless your neighbors complain. This restriction has become particularly burdensome for those who use the drug as medicine.

Even recreational users scoff at the law, though. After all, it’s supposed to be regulated the same way as alcohol, and if you can walk into a restaurant or bar and order a drink of alcohol in public, why not allow the same for cannabis?

The City of Los Angeles has issued statements indicating it does not sanction or license consuming marijuana in any public space, though the city’s Department of Cannabis Regulation is working alongside the city’s planning department to establish licensing for public pot consumption lounges. Council is expected to receive those proposals for consideration later this year.

Furthermore, NBC-4 Los Angeles reports a number of advocates have successfully convinced leadership in West Hollywood to to approve plans to open potentially eight new locations for individuals to smoke the drug in public and another eight locations for people to consume edible marijuana products. Some say the permitting process has been moving at a snail’s pace, but at least it’s moving somewhat. Most cities in the state seem keen to keep it under wraps.

California State Restrictions on Public Use

In the meantime, the California Department of Public Health clearly outlines where it is lawful – and unlawful – to consume cannabis in any form. Basically, as our Los Angeles marijuana attorneys can explain, you’re restricted to private residences. That’s if you want to be on the safe side. Technically speaking though, you are expressly prohibited from smoking, using, eating or vaping cannabis in public places or anywhere it is not legal to smoke tobacco. Even private property owners can ban the use of cannabis on their property, which includes not just hotels and resorts but also apartment and condo complex owners.

The law further disallows:

• Using cannabis within 1,000 feet of a daycare center, youth center or school while children are present.
• On federal lands like national parks – even if the park is in California. (It’s under federal jurisdiction, and the drug remains illegal under the U.S. Controlled Substances Act.)

If you are in possession of cannabis in your vehicle, it needs to be in an approved sealed package or container or in the trunk. You can be cited for having an open container of cannabis in your vehicle – either while driving OR riding in the passenger seat, the same way you would alcohol. You also cannot take your cannabis across state lines, even if you’re traveling to a state where cannabis is legal. Also be aware that per California law, employers have the right to bar the use of marijuana by their employees, so it’s a good idea to know what your employer’s policy is before you imbibe – even off-the-clock.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

LA City Considers Opening Places Where You Can Smoke Pot, Feb. 27, 2019, NBC-4 Los Angeles

More Blog Entries:

FDA Ruling Spurs City Crackdowns on CBD Edibles , Feb. 20, 2019, L.A. Marijuana Citation Lawyer Blog

A group of researchers from the University of Colorado Boulder are teaming up with a researcher from Colorado State University to explore this highly potent method of using marijuana. CSU notes this study is a “first-of-its-kind,” and the hope is to eventually prevent instances of driving under the influence that endangers lives.

Our L.A. marijuana defense attorneys recognize that our state, like Colorado, has a vested interest in enforcing anti-impairment laws for motorists. After all, we know marijuana has the ability to impair one’s driving abilities and we know impaired drivers have slower reaction times and lowered inhibitions that can endanger passengers and other motorists. However, the problem specifically when it comes to marijuana impairment behind the wheel is that the determination is subjective.

California Vehicle Code 23152(f) holds that it is unlawful for anyone who is “under the influence” of any drug (including marijuana) to drive a vehicle. Unlike other jurisdictions, California does not set a per se limit on how much marijuana one can have in their blood before being deemed above the legal limitation. Proposition 64, which legalized marijuana even for recreational use, did not alter this statute, which can result in a maximum 6 months in county jail, among other penalties, for a first-time offense.

There are a number of marijuana DUI defenses our attorneys can help you raise, including:

• You weren’t driving the vehicle;
• You didn’t use marijuana;
• You used marijuana but were not under the influence when you drove;
• Lacking evidence that your mental and physical abilities were significantly impaired.

The exact defense raised will depend on the facts of your case.

The Colorado study looks specifically at the practice of dabbing. This is when a user inhales cannabis concentrates (70 to 90 percent comprised of THC) that are vaporized, providing an immediate rush that users describe as very strong. The study authors assert this type of research is necessary because while the practice of dabbing has expanded significantly in recent years, the research on it has been scant.

For three years with $840,000 in funding provided by the state health department, researchers are seeking existing dabbers; the team did not provide or administer the drug, as this was an observational and not a clinical study. Researchers sought to identify the effect of dabbing on motor function and reaction time. They looked at individuals’ ability to maintain balance or rapidly move their arms, fingers or legs, using information collected via an app on an iPod Touch that was affixed to the individual’s body (noting the $200 iPod device was as accurate as the $1,000 accelerometer in university labs).

Participants are being asked to complete a series of 10 tests in order to glean an accurate read of participants’ overall cognition and motor abilities.

There is little question that “dabbing and driving” is likely to be extremely dangerous, but there are still many factors that could play into whether someone is indeed “under the influence.” That would include the potency of the product consumed, the tolerance level of the user and how much time passed after use.

Previous research on the effects of THC on drivers have largely been inconclusive, and most indicate the need for additional study.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

An iPod in a van may uncover how dabbing cannabis can impair driving ability, Nov. 29, 2017, By Lena Ham, Colorado State University

More Blog Entries:

Tax Rate Fears Worry Some in Cannabis Industry, Nov. 22, 2017, L.A. Marijuana Lawyer Blog

The Preliminary Determinations in a DUI Investigation

Before determining if a driver is impaired, law enforcement officers must first determine whether the driver has a legal right to possess or consume marijuana at all. Prior to November 9, 2016, California drivers could only do so by the possession of a valid medical marijuana card. Now – with the legalization of recreational marijuana – any person in California may possess up to one ounce of marijuana or six plants. An officer who pulls over a California driver on suspicion of DUI must therefore first determine: (a) if there is marijuana in the vehicle, and (b) whether it exceeds the legal limit.

While Californians may have a right to possess marijuana, it is still illegal to drive with an open container of marijuana in the vehicle. According to the Sacramento Bee, this applies to any receptacles or marijuana products that are open, have previously been opened, or have a broken seal.

The Unclear Science of Marijuana Impairment

Once an officer clarifies the preliminary matters of possession, he or she must determine whether the driver has actually been impaired by marijuana use. This is an inexact process, because unlike alcohol, there is no scientific standard by which impairment can be definitely established for marijuana. The blood alcohol level of .08 has been correlated with the impairment of driving abilities, and this finding has been corroborated over decades of research data. No such level has been identified for marijuana.

In the absence of expanded funding and research for marijuana impairment, it falls to individual officers to determine whether a driver is impaired based upon simple observation. Cars.com reports on the findings of a safety panel assembled by the Governors Highway Safety Association and National Highway Traffic Safety Administration. Among other recommendations, this panel of thirty-seven experts advocated for detailed observations and notes from officers on the scene. They also recommended a field sobriety test for marijuana, to allow an officer to support his or her objective observations with subjective test results.

Of course, law enforcement officers are not the only people who can benefit from learning the signs of impairment. The panel recommended education for prosecutors, judges, and the public at large. Such training will enhance the efficacy of DUI prosecutions, and my increasing public awareness, reduce the number of prosecutions that become necessary.

Because there are not yet clear laws about driving while under the influence of marijuana, defendants can face serious penalties without scientific proof of impairment.

The Los Angeles Cannabis Law Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Pot Panel Recommends Highway Safety Measures, June 27, 2017, by Kelsey Mays, Cars.com

More Blog Entries:

Why Marijuana Sobriety Tests are So Unreliable, December 12, 2016, by Cannabis Law Group

This might seem like common sense – or perhaps already covered under existing impaired driving laws – but legislators insist the law will close a gaping loophole left by Proposition 64, the ballot measure California voters approved in November that legalized marijuana for recreational use. Prop. 64 does ban the presence of an open container of marijuana in a vehicle, but it doesn’t say anything about using marijuana while driving.

The measure was proposed by two Democractic lawmakers, Assemblyman Evan Low and Senator Jerry Hill.

Drunk driving and impaired driving has been a signature issue for Hill, of San Mateo. He’s the one prevailed last year in his fight for a law that requires temporary breathalyzers in motor vehicles belonging to certain DUI offenders hoping to regain their driver’s license privileges. This technology, widely referred to as ignition interlock, disallows a vehicle from starting if a motorist’s blood-alcohol concentration is above the legal limit. Hill explained that driving under the influence of any substance puts us all at risk.

We don’t disagree with this statement, but marijuana users face difficulty in proving their innocence that drivers who use alcohol or other drugs do not. As it stands, currently law forbids driving while under the influence of alcohol, marijuana or other drugs – including those offered by prescription. However, there is no breathalyzer for marijuana the way there is for alcohol. Neither is there any sort of standard in place for an officer to ascertain a person’s level of marijuana impairment. It’s largely subjective.

Blood draws and urine tests are sometimes used, but the problem is the samples taken can’t stipulate whether someone is currently under the influence or if the drug was still in the body from some prior usage. Prop. 64 tasked researchers with the University of California and law enforcement officers with the California Highway Patrol with conjuring up the best practices and protocols for determining marijuana impairment. That work hasn’t yet begun, so we don’t know what that recommendation will look like.

We do know that if SB 65 passes, it will make using marijuana while operating a motor vehicle an infraction or misdemeanor charge that could result in fines and possibly jail time, in addition to requirements to attend drug and/or alcohol education and counseling courses. (Judges would be granted the discretion of whether to charge the defendant with an infraction or misdemeanor.)

Technology for roadside testing of marijuana consumption is still in the works.

Our marijuana DUI defense lawyers are committed to fighting for the rights of marijuana users arrested for suspicion of driving under the influence. We recognize that the proof burden is on prosecutors, and there are a number of possible defense strategies that can be effectively employed. These range from moving to suppress certain evidence (i.e., if the stop was unlawful, etc.) to challenging the veracity of the physical evidence.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

New California bill would explicitly prohibit marijuana consumption for drivers, Dec. 30, 2016, Bay City News 4

More Blog Entries:

Marijuana Industry Poised to Generate Many New Jobs, Jan. 4, 2017, L.A. Marijuana DUI Defense Lawyer Blog