Driving under the influence of marijuana (DUIM) is certain to become the new watchword on California highways. Medical marijuana has been a presence in California for many years and the use of recreational marijuana may become legal if California voters approve a proposed November 2016 ballot initiative. But at present, California law has no “per se” law governing the act of driving under the influence of marijuana as it does for driving under the influence of alcohol.

As everyone knows, having a blood alcohol level over .08% while driving in California creates the legal presumption of driving under the influence. Whether you think you are affected by the alcohol in your system or not, if you have a .08% blood alcohol content, you are driving under the influence under the law, no “ifs, ands, or buts.” That is the “per se” law. However, if the cops suspect you are driving under the influence of marijuana, there is no per se law in California. In other words, in order to be convicted of driving under the influence of marijuana, the prosecution must prove you could not safely drive due to marijuana intoxication by the circumstantial evidence. That may soon change.

The move is on to enact a per se law in California that would make any driver who tests positive for a certain amount of THC presumptively driving unlawfully under the influence. Currently only Colorado and Washington State—two states that have legalized the recreational use of marijuana— have per se DUIM laws. In both states, a driver who tests with more than 5 nonograms of THC per millimeter of blood is presumed to be DUIM. As I discussed in a previous post, testing for THC is burdened by a lack of reliable and accurate testing methods. However, scientists are working hard to develop methods to test for THC levels that officers can use in the field.

There is another potential problem with per se DUIM law. The driving under the influence of alcohol per se limit of .08% was not pulled out of a hat. Many studies confirmed the strong correlation between blood alcohol content and the risks of driver error. The studies found that the risk of alcohol-related automobile crashes and blood alcohol content increased two-fold at a .08% blood alcohol content, and significant increases as the blood alcohol content increased. There are no such findings for driving under the influence of marijuana.

You might think it is obvious that someone high on pot would be a risk on the roads but even the National Highway Traffic Safety Administration conducted a recent study and did not find an increased crash risk for drivers who tested positive for THC. The study was a well-conducted and considered reliable, but it is not the last word. Certainly, more studies are to follow and statistics will become more readily available now that four states (Alaska, Colorado, Oregon, and Washington) and Washington D.C. have legalized the recreational use of marijuana.

Driving under the influence of marijuana is illegal in California whether the driver has a medical use card or not and will continue to be illegal even if the voters approve the recreational use of the drug. However, unlike driving under the influence of alcohol, DUIM is more difficult for the prosecution to prove and will likely remain so for some time. The laws in this area are evolving, which always means appellate court challenges and years before the legal standards are settled.

If you have been arrested for any driving under the influence offense or have any questions concerning a driving under the influence matter, please feel free to contact me at www.bill@williamweinberg.com or 949-474-8008.

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