California does not have a Delta-9 THC blood concentration limit for cannabis DUI convictions (unlike the 0.08% BAC threshold for alcohol). Hence, courts must evaluate cannabis DUIs based on on-site officer observation reports, DRE evaluation, and blood evidence. This is where a competent challenge from a DUID (Driving Under the Influence of Drugs) defense attorney can get your charges reduced or dismissed.
Key Takeaways
- California Vehicle Code § 23152(f) (VC) prohibits driving under the influence of cannabis or other drugs, but sets no nanogram-per-milliliter threshold.
- Active Delta-9 THC concentration in your bloodstream can be evidence of recent consumption that may cause driving impairment.
- DRE evaluations are most often the primary weapon in the prosecution’s arsenal. It is also the most challenged evidence category.
- THC concentration falls with time, unlike BAC levels that can increase hours after consumption. Blood drawn at the time of the stop will have higher Delta-9 THC concentration levels than the blood drawn at the station hours later.
Recent trends show an increase in the volume of cannabis DUIs in California, especially with medical marijuana being legal in the state since 1996, as well as the recent legalization for recreational use. However, cannabis DUIs do not have a legal threshold like that for alcohol DUIs (0.08% BAC).
Hence, courts and prosecutions must depend on a combination of blood test results, driving behavior, and other evidence to determine driving impairment status for cannabis DUI cases.
How Do Police Officers (Law Enforcement) Investigate Cannabis Impairment?
Roadside breathalyzers aren’t designed to detect cannabis impairment but rather to analyze a person’s exhaled breath to detect blood alcohol content. Hence, police officers and law enforcement must rely on subjective physical testing, on-the-spot blood test results, and behavioral patterns to collect evidence and build their case.
If officers of the California Highway Patrol (CHP) or a local police officer smell marijuana from your vehicle during a DUID traffic stop, they will deploy a standard four-step investigative sequence, which includes:
- Step 1: Roadside Field Sobriety Tests (SFSTs)
- Step 2: Physical Signs Identification (Red Eyes, Dilated Pupils)
- Step 3: Drug Recognition Expert (DRE) Evaluation
- Step 4: Compulsory Forensic Blood Draw
Common Problems with Delta-9 THC Testing
- Rapid THC Changes: Levels can rise and fall quickly
- Delayed Blood Draws: Results may not reflect driving time
- Residual THC: Frequent users may test positive long after use
- Individual Variability: Different people react differently
- Scientific Disagreement: Experts often disagree on conclusions
For example, you may undergo a blood draw several hours after being stopped. By that point, THC concentrations in your blood may differ significantly from levels present when you were actually driving.
This timing issue is a central defense argument that our DUID defense lawyers at DCD LAW often use to challenge blood testing results in DUID cases.
The Speculative Role of a DRE (Drug Recognition Expert)
When an arresting officer has a suspicion of drug use, he will call for a Drug Recognition Expert (DRE). The DRE will conduct a 12-step physical assessment at the local police station. During this assessment, the DRE will conduct a few tests that include:
- A preliminary breath test of the defendant
- Interview with the arresting officer
- Pulse rate measurement
- Eye examination (HGN, vertical gaze nystagmus, lack of convergence)
- Divided attention tests (walk-and-turn, one-leg stand, Romberg balance)
- Vital signs (blood pressure, body temperature)
- Pupil size assessment in three light conditions
- Muscle tone examination
- A final toxicological blood draw
There are many commonly known physical signs, such as bloodshot eyes or elevated blood pressure, that can also result from common fatigue, seasonal allergies, and/or anxiety about what the law enforcement officer did to you during the DUID traffic stop. At DCD LAW, our competent DUID defense attorneys regularly cross-examine DREs to point out the lack of validity of using subjective physical testing methods to establish drug impairment.
Common Defense Strategies Used by DCD LAW Attorneys for DUID Cases
Cannabis DUI cases present a few potential defense strategies that aren’t available for alcohol DUI cases. At DCD LAW, our attorneys explore each of these defense strategies in every DUID representation.
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Strategy 1: No Legal Threshold
Without a legal threshold, the responsibility lies entirely on the prosecution to prove actual driving impairment due to cannabis consumption. Our lawyers will contest every element of the evidence chain (blood test interpretation, officer subjectivity, DRE opinion, etc.).
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The Delta-9/Metabolite Distinction
If the blood testing results show primarily or exclusively THC-COOH with low or undetectable Delta-9 THC, the prosecution cannot establish that you were acutely impaired while driving. At DCD LAW, we retain toxicology experts to provide testimony on the pharmacokinetics of THC elimination and the significance of specific ng/mL readings in context.
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Challenging the DRE Reliability
Our DUID defense attorneys cross-examine the DRE officer on training, case-specific performance, and several other points to contest the reliability of the DRE and the DRE report. At the same time, our defense strategy also involves questioning the validity of the DUID traffic stop in accordance with your Fourth Amendment rights.
Key Elements of DCD LAW’s DUID Defense Strategies
- No Proof of Actual Impairment: Presence of THC alone may be insufficient
- Testing Reliability: Challenging laboratory procedures
- Timing of Blood Draw: Questions the accuracy of results
- Alternative Explanations: Explains observed behavior
- Procedural Errors: Examines law enforcement conduct
Our skilled DUI defense attorneys analyze both the scientific evidence and the circumstances of the stop to prepare the best defense strategies for the desired outcomes.
What Penalties Can You Get for a Cannabis DUI in California?
A DUID conviction in California carries similar criminal penalties to an alcohol-related DUI.
| Offense Level | Potential Jail Term | Average Court Fines |
DMV License Action |
| First Offense | Up to 6 months in county jail. | Approx. $390 to $1,000$ plus assessments. | Class suspension; eligible for a restricted license. |
| Second Offense | 90 days to 1 year in jail. | Elevated court fines and fees. | Mandatory 2-year suspension period. |
| Third Offense | 120 days to 1 year in jail. | Maximum structural court assessments. | Mandatory 3-year driver’s license revocation. |
Table: Penalties for DUID Convictions in California
Why Is Early Legal Representation Vital to Your DUID Defense in California?
Securing an experienced attorney shortly after being charged with a cannabis DUI will significantly improve your chances of winning your case. If you delay contacting an attorney until after your first court appearance, you have effectively given the prosecution a tremendous amount of advantage.
The evidence that is presented against you in DUI cases often requires significant expertise for proper evaluation, review, and analysis of all relevant data. This is where the DCD LAW team can prove to be critical in your defense against a DUID charge. We have a highly proactive pre-filing defense program specifically designed to prevent a DUI charge from being filed against you at all. Our goal is to have the District Attorney either dismiss your case altogether or reduce your charge from a DUI to a lesser offense by providing an independent laboratory audit and demonstrating that you were not impaired. This can all be achieved without you ever setting foot in a courtroom.
Benefits of DCD LAW’s Early Legal Assistance
- Evidence Preservation: We secure important records that can assist your defense
- Scientific Review: We employ independent experts to analyze law enforcement’s testing methods
- DMV Representation: We help you address license-related issues with the California DMV
- Case Investigation: We will identify weaknesses in the prosecution’s evidence to weaken their arguments during the trial
- Strategic Defense Planning: We will develop the strongest defense possible to ensure successful outcomes
Charged with DUID Charges in California?
Take advantage of DCD LAW’s aggressive approach to DUI defense for individuals accused of driving under the influence of marijuana. Through the use of blood tests and DRE evaluations, our attorneys will challenge all evidence used to support the DUID charges and protect your driving privileges by constructing a solid defense for you based on your individual situation.
Frequently Asked Questions
If I Have a Current Medical Marijuana Card, Can I Still Be Charged for DUID?
Yes, a valid medical marijuana prescription will not serve as a defense for a DUID. If one of the conditions that impairs your ability to drive safely is the consumption of marijuana, then you can face DUI charges under California Vehicle Code § 23152(f) (VC).
Will My Driver’s License Be Automatically Suspended by the California DMV After a Cannabis DUI Arrest?
No, the California DMV does not automatically impose a criminal administrative license suspension for drug-only arrests (not involving alcohol). Your driving privileges can only be suspended after a formal conviction in a criminal court.
Can I Refuse a Blood Test if Wrongly Accused of Driving High?
Yes, you can refuse to consent to a blood test after being arrested. However, there are potential consequences for refusing to provide appropriate evidence of sobriety following your arrest. Under California’s implied consent law, if you refuse a post-arrest chemical test, your Driver’s license will automatically be suspended for 1 year from the date of your arrest.
If My Passenger is Smoking or Consuming Cannabis While I Am Driving the Vehicle, Can I Be Charged With DUID?
Yes, you can absolutely be charged with a Cannabis DUI. Even if you are not smoking or ingesting marijuana, you are still breathing in secondhand smoke in an enclosed car. This will lead to enough THC concentration to cause driving impairment. At the same time, you may also fail a field sobriety test, which will make it even more challenging for you to prove that you weren’t partaking. Either way, California Vehicle Code § 23222(b) states that it is illegal for anyone to smoke or ingest cannabis while driving or riding as a passenger in a car on a public street. So, you can still be charged with a cannabis DUI.
How Will DCD LAW Challenge the Testimony of a Drug Recognition Expert?
DCD LAW will prove that a DRE lacks credible evidence supporting their conclusion of impairment by conducting an independent audit of their training records, highlighting subjective flaws in the DRE’s evaluation process, and utilizing objective evidence such as forensic toxicology reports to demonstrate that their conclusions regarding impairment were speculative rather than based upon objective factual evidence.
