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Expert Roundup: Legal Marijuana and DUIs in California

Posted in Drug FAQ'S on November 2, 2016

This November, Californians will vote on legalizing recreational marijuana through Prop. 64, the Adult Use of Marijuana Act. The Golden State is already the nation’s largest marijuana market, having legalized medical marijuana back in 1964 with few restrictions. While some pro-legalization groups have come out against Prop.64 (generally arguing it favors big growers over smaller ones), polls show it’s likely to pass, ranging in support of 51 to 71 percent of residents. Should it pass, California is likely to face some similar problems as California, Washington and Oregon.

Road safety is a major talking point for those against Prop. 64. Washington and Colorado, for example, both reported an increase in fatal accidents and drivers with THC; however, they also say this is not necessarily a causation as THC was rarely tested for prior to legalization. But how should DUIs with marijuana be handled? Is it possible to have a legal standard, like BAC with alcohol? Should medical marijuana patients have different standards? Should we even worry about people driving on marijuana?

We asked legal experts, former police officers and judges, and supporters and opponents of Prop 64 to answer some questions on the possible legal ramifications of Prop. 64. Their answers are below. If you’d like to learn more about marijuana and it’s side effects prior to reading, click here.


Graham Donath

Riverside DUI Attorney Graham Donath

California criminal defense attorney Graham Donath: Donath, of The Law Offices of Graham Donath, is an award-winning defense lawyer and one of a few recognized as a certified specialist in defense law under the California State Board. He is a seasoned Riverside DUI lawyer.


George Eskin

Superior Court Judge George Eskin, LEAP

Superior Court Judge George Eskin (Ret.): A UCLA School of Law graduate, Judge Eskin began his career as LA’s Chief Assistant City Attorney before being appointed to the California Superior Court in 2003. He served 10 years on the bench, largely handling criminal trials. Today he is an active member and speaker for the non-profit, Law Enforcement Against Prohibition (LEAP).


Stephen Downing

Stephen Downing, LEAP

LAPD Deputy Chief Stephen Downing (Ret.): After 20 years of service, Downing retired from the LAPD as the deputy chief of police. He strongly believes America needs a new approach to the war on drugs and is an active member and speaker for LEAP.


We reached out to many individuals and organizations against Prop. 64 and/or the legalization of marijuana but received no answers. Should we receive any responses in the future, we’ll update this post to include their thoughts.

Q. It’s well known you can get a DUI outside of a car – boats, bikes, even on a horse- but DUIs involving drugs, especially marijuana, is more of a gray area for the public for many reasons. Since The California Highway Patrol (CHP) doesn’t keep data on accidents directly related to marijuana, how prevalent do you think it is now and could become?


Stephen Downing: 

Charlie Beck, the LAPD chief once said when asked about legalizing, regulating and controlling marijuana, “I don’t need another layer of problems.”  My response is that the layer is already here and it’s controlled by cartels and street gangs rather than government, thus the violence factor, not to mention people not knowing what they are getting in terms of purity and strength.  

So, if marijuana has been responsible for DUI accidents – and we know the vast majority of under the influence of fatal and injury accidents are related to alcohol – then it has been with us at that same level for many years.  I do not expect a big spike in marijuana use once it is legalized, regulated and controlled.  I do expect, like in Colorado – more under the influence arrests by the CHP for marijuana because they will be better trained and more alert to its symptoms – at least until they get a presumptive measure.

Judge George Eskin: 

DUI is shorthand for ‘driving under the influence’.  The issue presented to the investigating officer (and ultimately, a jury) is whether a driver’s ability to operate a motor vehicle was impaired at the time of driving.  There are numerous factors to be considered, including (1) the manner in which the vehicle was operated (slow, fast, swerving, weaving, etc.), (2) the driver’s physical appearance (speech, vision, balance), the driver’s response to questions and performance of balance, agility and divided attention tests.  

All of these factors affect the impairment decision and none of them include a chemical test. In other words, a DUI case can be prosecuted successfully without a blood, breath or urine test to determine the presence of a drug, whether it is alcohol, marijuana or a prescribed opioid! In California, we prohibited driving a motor vehicle with a blood alcohol level of 0.08 per cent to more, separate and apart from “DUI”, and we do not need such a law for driving after consumption of marijuana (or any other drug).

Q. Currently, under California law, medical marijuana users are not exempt from DUI marijuana charges nor can it be used as a defense in court. Considering marijuana can stay in a person’s system for weeks- depending on their frequency, body fat and metabolism levels- should this law change? If yes, why or how would you like it to?


Graham Donath: 

I don’t know that there are any better alternatives.  When talking about a DUI for drugs in CA, the current standard doesn’t involve a particular quantity of that drug in the bloodstream, it focuses on the question of impairment which is a difficult standard to determine.  A jury makes the determination on whether the person was driving while under the influence of the drug in question and was so impaired that they can’t drive like a sober person would (I’m obviously paraphrasing.)  There hasn’t been enough studies done to reach any kind of consensus in my opinion as to what a quantitative level of “impairment” would be in the average person.

Stephen Downing: 

The law should not change.  It is unlawful to drive while impaired on any drug – marijuana included.  THC can and will remain in a person’s system, unlike the burn rate of alcohol, but that should not be the measure.  The measure should be whether or not the person is impaired  That is the law now and that’s how the law should remain.

Q. If a medicinal marijuana user is pulled over for an unrelated reason and is later asked by the officer if they’re driving under the influence of any substances what should they say if one, they smoked within the last few hours and two, if they smoked over 12 hours ago?


Graham Donath: 

They shouldn’t be answering any questions at all.  There is no reason why anyone who is detained regarding their potential criminal behavior should say anything other to a law enforcement officer about where they were coming from, where they’d been, how much they’ve had to drink, etc.  The correct answer to all questions (once you’ve handed over your license and registration of course) is to politely say, “I’m exercising my right to remain silent.”

Stephen Downing:

First, the pull over should be based upon probable cause that the driver is under the influence to the extent that he/she is impaired.  When asked a question that may be incriminating, that is up to the person being pulled over.  However, at this point in time whether marijuana use was within the last hour or two or twelve hours at this point means nothing, because there has been no evidence based standard developed to establish a presumption of impairment.  So, in this case if the officer has probable cause to believe the driver is impaired – on any drug – he should perform an objective test, apply his training and decide to arrest or not arrest.  If the officer arrests, then he/she should pursue a scientific test that can be used to corroborate his expert opinion.

Q. Washington and Colorado both reported an increase in fatal accidents since legalizing marijuana; they also say this data does not directly mean all drivers with detectable THC were actually impaired or that the user was at fault. How do you think California voters worried about road safety should interpret these state reports before voting?


Graham Donath:

Interesting question, because the premise actually presumes a causation when I don’t know whether there’s been more shown than correlation.  But let’s be honest, this is political and in this election it seems more and more like actual facts matter less and less.  

The realities are that California already has an abundance of semi legal options for purchasing marijuana, and the possession of marijuana is already a minor infraction that is less than a speeding ticket.  I don’t see a massive change in the number of people smoking marijuana if the proposition passes.  If anything, the government can now spend more time on studying and educating the public on safe (and unsafe) uses, including the use of motor vehicles.

Stephen Downing: 

California voters have been mislead with scare tactics used by marijuana prohibitionists, especially law enforcement who are going to lose millions in grants and asset seizure monies. Voters should recognize that marijuana use at high levels has been with us for decades and rather than be alarmed at “what might happen” they should instead ask, “Why is law enforcement issuing these dire warnings now?”

The harms of prohibited marijuana are a thousand times greater than current concerns over the unproven potential of traffic safety.  The voter should recognize the value of change and the fact that Proposition 64 is not only flexible in terms of future adjustment, but that it also funds research for the CHP to develop scientific measurements related to marijuana and its impairment impact upon drivers. This is much better future for enlightened enforcement than that which we have now – and again, I raise the question, why did the CHP not address this issue decades ago – like they did alcohol?

Judge George Eskin: 

I dispute the assertion that Colorado and Washington have experienced an increase in traffic fatalities attributable to marijuana for any reason other than the increased testing for marijuana.

Q. Do you think legal marijuana will pose a threat to road safety? Please explain.


Stephen Downing: 

I think that most all drugs pose a threat to road safety. We see advertisements on TV daily that warn of particular prescription drugs and caution the user to ensure they know its effects before driving.

Marijuana is in the same category.  It poses a threat to road safety whether it is legal or illegal.  The use factor is there and I doubt that it is going to increase a great deal.  It may very well bring about a decline in alcohol consumption – so in that regard, it just may contribute to safer road conditions – although I do not think that we should encourage that analogy, but rather provide a greater span of education about marijuana and safe driving as we learn more about it – and use some of the money provided by Prop. 64 to finance that kind of public education.

For the remaining questions, please assume Californians approve legal marijuana this November.

Q. While Colorado, for example, uses 5 nanograms, there is no known scientific weed equivalent to the 0.08 blood-alcohol levels for drunk driving. In your opinion, how would you like to see California legally monitor driving under the influence of marijuana after legalization is in full effect?


Graham Donath: 

The complexities of using a particular number of nanograms are such that I don’t support it as a metric for a criminal conviction.  How on earth could someone be able to assess whether they have 4 nanograms in their system rather than 5?  Using that as a basis to convict someone of something that could cost them their job, tens of thousands of dollars, and their reputation seems inappropriate. At the same time, having a vague standard/definition for “impaired” is also tough, but at least convictions will be based around what ultimately everyone wants to prevent, which is impaired drivers.

Stephen Downing:

 If the Proposition 64 money provided to the CHP for research results in a scientific findings and method(s) to establish an evidence based presumptive level of impairment I believe that – associated with probable  cause to believe the driver is impaired –  should be used.  But, I would caution that this standard should be free of the kind of politics (think M.A.D.D.) that drove the presumption of alcohol impairment from .15 to .10 to .08.  Many drivers at .08 are not impaired and thus are unjustly criminalized and convicted. I would hate to see that injustice extended to any drug, including marijuana.

Q. Hound Labs Inc has made headlines for its current testing of a dual alcohol and marijuana breathalyzer for police use. The company says it should be able to detect if someone smoked within the last hour or two, but not necessarily determine impairment. What are your thoughts on this?


Graham Donath:

It’s an interesting idea, if the CA State Legislature were to decide to enact a new law prohibiting individuals from driving within a certain time frame of smoking, the focus would then be on length of time rather than impairment. I don’t know how they could get a definitive time frame from a device to say exactly when someone smoked.  And of course, the time frame has nothing to do with impairment because every person is different. I don’t think the science is there to make safe “proof beyond a reasonable doubt” calls just because someone smoked recently.

Stephen Downing:

I think that if a driver is stopped for probable cause, an objective test is conducted by a trained DUI officer including an examination of all objective symptoms, and the expertly trained officer concludes that the driver is in fact impaired – then I believe that the use of such an instrument – if proven to be accurate and dependable –  should be admissible as corroboration of the officers expert conclusions as to impairment.  I do not believe that such an instrument should be used as either stand-alone evidence or one that supports a presumptive standard.

Q. If California keeps its current DUI marijuana laws, what would be your best advice for recreational users who drive?


Graham Donath:

I grew up surfing and bodysurfing in a small beach community and there’s a common expression used amongst ocean enthusiasts, which is “When in doubt, don’t go out.”  The same is probably best fitted here.  There is no real metric for measuring your impairment, and if you aren’t sure, you certainly shouldn’t drive.  In the modern age of Uber, there’s no reason to take the risks involved to yourself and others of driving while under the influence.

Stephen Downing: 

I have no personal experience with the effects of marijuana. I know that I am fine with two of glasses wine – both as to not being impaired and being under the -08 presumptive level.  However, a third glass of wine may very well still be under the presumptive level of .08, but I know that the 3rd glass buzz is telling me I am impaired – and not to drive.  Marijuana users should apply that same kind of standard, until such time as a presumptive standard is made a part of the law.  Bottom line, no one should drive while impaired.  If you are a recreational user, you are 21 or over.  That is a legal standard in which the law and society expects adults to make mature decision. Therefore one should be personally responsible for making a mature and informed decision and not endangering others.

Q. The DEA recently raided Med-West Distributors, a licensed medical cannabis extraction company in San Diego where they confiscated over $325,000 from his safe). It was one of at least five other raids in California this year, according to Inc. Med-West CEO James Slatic made an interesting comparison after his raid.


“If you look at the history of alcohol prohibition and cannabis, there are a lot of parallels. Powerful forces are unhappy about legalization of cannabis, and they’re not taking it lightly.” He says during the last year of alcohol prohibition, there were more raids and arrests than the previous 12 years during prohibition.


What are your thoughts on this comparison?


Graham Donath: 

Terrible comparison. Alcohol has been a widespread item of mass consumption since the beginning of modern history.  Prohibition was a brief period of social blowback against something that has otherwise been in widespread use and acceptability. Cannabis can aptly be described as the opposite – historically not mass consumed or accepted as socially acceptable, but has a newfound period of social acceptance. Apples to oranges might be an understatement of how different from a historical standpoint.

Stephen Downing:

The experience is historically accurate. Besides the accelerations of raids we have most recently seen the DEA make a concerted effort to put Kratom on Schedule One along with Marijuana and heroin.  When alcohol prohibition ended Harry Anslinger, the psychotic head of the newly formed Federal Bureau of Narcotics, saw that his bureaucracy – and his budget would not survive with only drugs like heroin to enforce. So he lobbied  to put a prohibition on marijuana – and HEMP to be prohibited – and he enlisted major industrialist, who would benefit by the elimination of Hemp agriculture, to support his crusade with Congress.  He was successful and Reefer Madness and its offspring became the educational culture of our county, providing the base for Nixon to proclaim the war on drugs, give birth of the DEA and wage an unprecedented global war of criminalization and incarceration on the people since.

The same condition exists with the threat of ending the prohibition of marijuana. They see it coming and are hanging on to their bureaucracy and budget and all of the corruption that goes with it – just as they did when Harry Anslinger decided he needed something other than alcohol to put under the legal and punishing hammer of prohibition.