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Marijuana and DUI: What Californians Need to Know

On Behalf of | Feb 11, 2014 | Blog, Blood Tests, Marijuana Testing

California continues its seemingly inexorable march toward marijuana legalization, but even if weed becomes legal, driving under the influence won’t. Tens of thousands will still be prosecuted for allegedly driving when their ability to see, think or operate their motor vehicle is impaired by any psychoactive substance, including weed. Here’s a run-down on current California drugged driving law, how people get popped for it, what the punishments are, and how to act right.

What is a DUI for Marijuana?

A DUI for drugs is considered driving under the influence of drugs (in this specific case, marijuana). Sometimes, it can be difficult to prove what constitutes a “DUI” for marijuana, since blood tests can’t prove when you consumed marijuana, just that you did at some point. “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects,” the National Highway Traffic Safety (NHTSA) writes.

According to California law, in order to be convicted of a DUI for drugs, you must be impaired to such an extent that you lack the “ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.”

Thus, the charge and conviction can be rather subjective and usually takes into account some combination of your driving pattern, physical appearance, performance of field sobriety tests, and a blood test for marijuana.

How You Can Get Charged with a DUI

If you are pulled over or encounter a cop who expects you are under the influence of marijuana, he will call in a Drug Recognition Evaluator (DRE) to the scene. The DRE is trained to look for signs that prove that someone is impaired from marijuana. These signs include dilated pupils, elevated pulse rate, elevated blood pressure, giving off the odor of marijuana, tremors, relaxed demeanor, dry mouth and short term memory impairment. If the DRE determines you are under the influence of marijuana, you will be arrested for suspicion of DUID, taken to the station, possibly subjected to a blood draw, and the DRE will testify to his conclusion at your trial.

What Are The Punishments For A DUI?

If you are convicted of driving under the influence of marijuana, there are a range of punishments you could incur. The severity of the punishment takes into account several things including the facts of the case, your criminal history, and even the county you were arrested in. For a first time DUI conviction, you could receive three to five years of probation (probation often includes drug testing), up to a year in jail (this almost never happens, but depending on the county you may be looking at a few days to a few weeks of community service in lieu of jail time), fees and fines that can run to almost $2,000 (note that the fines increase periodically), a twelve-week DUI school and a 6-month suspension of your California driver’s license.

For a second offense, you’re looking at several days of actual jail time, even higher fees and fines, and an even longer DUI class. Subsequent offenses generally will increase your punishment and depending on the circumstances may even be charged as felonies, which carry possible state prison sentences.

What To Do If You Are Pulled Over

If you are pulled over, and you believe the officer may suspect you of driving under the influence of marijuana, the best thing to do is remain calm, do not make any statements or admissions to the officer, and wait patiently until you are released from jail and given a court date to begin fighting your case. Then, immediately contact a good DUI lawyer who practices in the jurisdiction where you were arrested. It is important to know that in California, you have ten days from the date of your DUI arrest to request a hearing before the DMV to determine whether your license should be suspended. If you do not request a hearing, your license will be suspended automatically.

Colorado and Washington, which both recently legalized weed, consider it a crime to operate a vehicle with 5 nanograms active THC per milliliter of blood or more, though in Colorado medical marijuana patients can fight the automatic DUI conviction. But until better and more scientific tests are developed, it is much more difficult for the authorities to tell (and to prove in court) whether a person is under the influence of weed than it is to tell if they are drunk. A good lawyer should be able to poke all kinds of holes in the prosecution’s evidence that you were driving under the influence of marijuana.


Whether its booze, weed, or DayQuil, stay off the road if you even think you may be too impaired to drive. On the road, don’t get pulled over in the first place. Observe all traffic laws and make sure all your vehicle lights work. A little window tint, or dice hanging from the mirror is a primary offense. (Even if you’re lawful, the sad reality is you can be arrested for being the wrong color in the wrong town at the wrong time.)

But if you are arrested for driving under the influence of marijuana, it doesn’t need to be anything more than a bump in the road.