At the beginning of 2022, the law regarding DUI diversion changed. DUIs are no longer eligible for diversion in California. Please contact our office with any questions. Email us at OR Call us at: (415) 523-7878

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How Does The Legalization Of Marijuana Affect DUI Laws In California?

Due to the legalization of marijuana, we expect to see more people using it, and as a result, putting themselves in jeopardy of getting pulled over for DUI (driving under the influence). The laws for marijuana have changed a little bit with regard to open containers and how it can be transported. However, the laws have not changed substantially; if you’re found to be driving while impaired by marijuana, alcohol or an illegal substance, you can be arrested and prosecuted for driving under the influence of drugs or the combined influence of drugs and alcohol.

When Are The Effects Of Marijuana At Their Strongest After Consumption?

Marijuana can sometimes be felt almost immediately upon ingestion. When marijuana is inhaled, the first hour or two is when the heightened effects of it are usually felt. When marijuana is consumed orally, it may take a bit longer to feel the effects because it takes longer for solids to absorb into the blood and travel to the brain. After about three to four hours, most of the effects of marijuana have worn off. However, the active ingredient for marijuana, which is delta-9-THC, will show up in high amounts on a test that is taken within an hour or so of ingestion.

It’s advisable that people wait about six hours after ingestion before driving. I advise clients not to drive if they have smoked marijuana that same day. Someone who is a chronic, habitual smoker will more likely have higher levels of delta-9-THC show up on a test. In fact, the numbers tend to be about twice as high as someone who is not a habitual smoker. You just have to be really careful if you’re a chronic smoker, because while you may not be impaired, the inactive ingredient can still show up in your system. As a result, the prosecution will try to say that the level of the inactive ingredient was sufficient to show impairment.

Some states have the per se laws, but luckily we don’t have that yet in California. These laws are a real problem, because most of those states have a legal limit of 0.05, which isn’t a lot. In fact, there have been a lot of studies that have been done, and five nanograms per milliliter is an amount that is correlated to less than what would be called impairment with alcohol for most people. It’s not that much, and the fact that that limit has been set so low puts many, many people who are using marijuana in jeopardy of getting convicted for driving under the influence of drugs when they are not actually impaired. That’s the problem with the law and that’s the scary part. That’s why people have to be so careful if they’re going to smoke marijuana or ingest marijuana and drive.

I don’t want to get too much into the science of it, but delta-9-carboxy THC is an inactive metabolite of marijuana, and C-11-hydroxy THC is an active metabolite of marijuana. I want to get the terminology out there so people can understand the difference between the two.

How Is The THC Measured Differently In DUI Cases After The Legalization Of Marijuana?

In terms of what can be used against you in court, there is usually a blood or urine test performed in order to measure the amount of THC in your system. If an officer believes that you’re under the influence of something other than alcohol, they’re not going to do a breath test (although sometimes they do and that’s a mistake on their part). Instead, they will usually do a blood test and tell you that that’s the only test that you have an option to do. They might say you also have the option to do a urine test, but many facilities cannot provide for a urine test.

Most people who would get arrested for a drug DUI are only told that they have the option of doing the blood test; if there’s no blood test available, they would potentially do a urine test if they can find a facility that can do that. A blood test is the best way for them to detect drugs, whether prescription or illegal THC. They do have screening devices now which are using in some areas of the country. In Southern California, they can do swabs. There is also a device being used by the police in Marin County, California that can detect alcohol molecules in the air. There are a number of different ways in which they can determine whether or not they should do further investigation for impairment.

For more information on Legalization Of Marijuana In California, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 523-7878 today.

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Aaron Bortel
With 30 years of specialized experience in DUI defense, Attorney Aaron Bortel is a dedicated advocate for those facing DUI charges in the Bay Area. Committed to helping clients avoid jail, save their driver’s licenses and jobs, and prevent permanent criminal records, he combines deep legal expertise with genuine care for his client's welfare. Trust in a lawyer who not only defends but truly supports you through challenging times.

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