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Breathalyzers and Marijuana

By San Diego Attorney on July 30, 2022

What is driving under the influence of drugs (DUID) in California, and what are the penalties?

Driving under the influence offenses in California include both alcohol and drugs. You’re committing an offense if you drive in a vehicle under the influence of a controlled substance under Section 23152 (f) of the California Vehicle Code. You’re also committing an offense if you’re driving while affected by both drugs and alcohol, under Section 23152(g).

Marijuana is now considered a legal, recreational drug, but both legal and illegal drugs are included in this law. If guilty of DUID, you could face some of the following penalties:

  • A misdemeanor conviction
  • Fines of between $390 and $1,000 (for a first offense)
  • A driver’s license suspension of at least six months, and
  • Completion of a DUI school.

Technically, a first conviction carries a jail term of six months, but first-time offenders are usually put on probation instead: conditions of probation include submitting to a chemical test if police pull you over and complying with all court-ordered courses.

Second-time offenders can be sentenced to up to a year in jail, but they can also qualify for a term of probation. A third-time offense carries a mandatory jail sentence, which can sometimes be commuted, for instance, to house arrest.

If you are facing a DUID charge in California, call jD Law Criminal Defense Attorneys today for expert advice.

How do police/prosecutors determine whether you were driving under the influence of drugs?

If police believe your driving is impaired, the first step they take is to pull you over. If they see obvious signs of drug use, such as red eyes, cannabis paraphernalia in your car, or they smell marijuana, they will test for drugs. They will do this either instead, or as well as, measuring your blood alcohol content with a breathalyzer.

Once police have “probable cause,” they can arrest you for DUID and compel you to take chemical tests.

To establish how impaired you are, they might first ask you to take a field sobriety test, and/or to take a mouth swab test. Mouth swab tests can reveal the presence of seven drugs (including marijuana) in your system, but not the amount that you have taken. You do not have to take a mouth swab test until you are arrested.

FSTs are designed to test your level of physical and mental impairment, and they can include balance tests and walk-and-turn tests. You don’t have to comply: these tests can be used as grounds for arrest, and even people who are sober can fail.

If a drug recognition expert is called in, you may have to do further tests back at the police station and undergo a physical examination (including taking your pulse and temperature, looking at your pupils, and examining you visually for any other signs of drug use).

Do marijuana-specific breathalyzers exist?

Yes—but they are still undergoing development, and they are not used by the police yet. Cannabis stays in the system for a long time after the “high” has worn off, making it hard to create an effective and reliable test for impairment. It’s possible that in the next few years marijuana breathalyzers will be used.

How should you act with police officers if you have been using marijuana and are pulled over?

Be polite and non-confrontational, and try not to stress out too much. You can decline field sobriety tests (FSTs) and we strongly recommend you politely refuse to take them—people frequently fail these tests even when they are completely sober, due to nerves, medical conditions, or a general lack of coordination. Failing an FST can be used as grounds for arrest, even if the level of marijuana in your system is very low.

Police might tell you it’s in your best interests to take these tests, but completing FSTs—or any chemical tests—before you are arrested, provides no benefit to you.

If you are arrested you will have to provide a chemical test. At this point, you should comply, and call a lawyer as soon as possible, before answering questions.

If you do get in trouble, how can a lawyer help you?

A lawyer can help defend your DUI case, for instance by:

  • Identifying flaws in police procedure, such as not having a valid reason to pull you over, or not having probable cause to arrest you
  • Arguing that the level of drugs in your system was too low to have caused any driving impairment
  • Putting forward mitigating factors such as medicinal marijuana use and alternative reasons for why you were impaired (such as medical conditions, fatigue, allergies).

Contact jD Law Criminal Defense Attorneys today to discuss how we can help you. Give us a call at (760) 630-2000.

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