Marijuana DUI: What a Fresno DUI Attorney Thinks You Should Know

Jun 21, 2017

While many celebrated California's legalization of recreational marijuana last November (Proposition 64), that same initiative granted California Highway Patrol (CHP) a multimillion dollar contract to enforce it. That enforcement includes going after marijuana DUI.
However, enforcing against marijuana DUI is problematic. For instance, just three years ago, the California legislature killed a law that would have criminalized driving while having trace amounts of THC in the bloodstream. Why? According to NORML, a non-profit dedicated to marijuana policy reform,THC can remain in the bloodstream for days after use, and long after any deleterious effects would have worn off. Proposition 64 did not clarify any "legal limit" for marijuana consumption and DUI, yet it is still a crime to drive while under the influence of marijuana. Thus, if you get pulled over for a traffic infraction, the officer can end up falsely accusing you of marijuana DUI depending on what transpires during your interaction. And with the passage of Proposition 64, it is likely CHP will step up its efforts to enforce marijuana DUI.
The Mouth-Swab Test
California law enforcement has stepped up the use of new mouth-swab tests to detect THC and other drugs in the bloodstream. Therefore, police can detect THC on-site during a traffic stop. The device cannot tell the level of intoxication or when you last used. However, an officer will use the detection as circumstantial evidence against you to say you were driving while high.
You Don't Have to Submit to the Test
Just like with alcohol breathalyzers, an officer cannot force you to submit to the mouth-swab test. However, if you opt not to take the test, an officer can compel you to submit to a blood test.
An Officer Can Use Circumstantial Evidence to Cite You for Marijuana DUI
An officer will also rely on subjective measures to determine whether you are impaired, like:
  • your appearance;
  • slurring your words;
  • fumbling around when retrieving your license and registration;
  • marijuana paraphernalia in the car;
  • poor driving. 
Carry Less than an Ounce or Marijuana, and Keep it in the Trunk
You can be cited with an infraction under the "open container" laws for driving or riding as a passenger with marijuana. Just possessing marijuana is enough to be cited. Proposition 64 did not address whether edibles or e-cig devices would be subject to the open container laws. The open container law also does not apply to medical marijuana patients, under some circumstances.
You may transport marijuana legally, but only in the trunk of your vehicle and only less than one ounce. This is a new provision, and it overrides California Vehicle Code 23222(b) that previously made it unlawful to transport any amount of marijuana. Some exceptions to this rule apply, particularly to medical marijuana patients, specially-licensed vehicles, and taxis.
If an officer pulls you over for a traffic infraction, and see that you are also violating the marijuana open container and/or transport laws, that can subsequently lead to an investigation for marijuana DUI.
If you are curious to know more about recent developments in marijuana DUI, or are in need of a criminal defense attorney, contact us at Mitchell Law Group. We are the Valley's top criminal and DUI law firm, dedicated to providing justice for our clients. 

Category: DUID Defense

Michael Mitchell


Michael Mitchell is a Fresno attorney who practices in the areas of DUI, personal injury & criminal law. Visit his Google+ profile.