Joseph P. Hougnon, Attorney at Law

Marijuana DUID’s and Per Se THC Limits Part 3

Reefer Madness – Science vs. Hysteria

Injury-related DUIs and DUID’s

In California, if a driver is proven or presumed to be DUI, the law only requires them to be at least 1% fault in a motor vehicle accident, in the event someone is injured or killed as a result (CVC section 23153). DUI’s that result in injury or death to another are called “wobblers”, meaning they can be charged as felonies or misdemeanors.

In many cases I’ve handled over the years, I’ve been able to negotiate a reduction of the charges by convincing either the judge or the DA to reduce a felony to a misdemeanor in plea negotiations. Depending on the case, mitigating factors can play a role in negotiations. But the nature and scope of the injuries are usually the main factor. In alcohol-related cases, the driver’s BAC can also tip the scales of justice and may affect the outcome of a particular case.

As I wrote in previous chapters of this blog, most states, including California, do not have “per se” limits for Driving Under the Influence of Drugs (DUID) cases, as they do for alcohol-related DUI’s. If you have drugs in your system and you’re arrested for suspicion of DUID in California, the District Attorney will have the burden to prove beyond a reasonable doubt your ability to drive was impaired, as they do in alcohol-related DUI’s, where the driver’s BAC is below the legal limit of .08% [CVC section 23152(a)].

If California were to pass a per se law for marijuana-related DUI’s, however, the presumption of innocence would no longer apply to those whose THC levels are at or above the threshold set by the legislature, as those who are driving with a BAC at or above the legal limit of .08% are presumed guilty by law in alcohol-related cases. Indeed, some states have taken this approach to Marijuana-Related DUID’s, enacting “per se” laws for drivers with relatively low levels of THC.

Several states have passed per se THC limits for marijuana-related DUID’s. The question is whether California will decide to pass similar laws, and whether science will play a key role in their decisions?

As studies have shown, the one-size-fits-all per se approach to marijuana-related DUID’s flies in the face of actual science and will lead to the arrest of some drivers who are not impaired at all, as well as those who may not have consumed marijuana several days, or even weeks.

Therefore, if California were to pass a per se law for marijuana-related DUID’s, one can only imagine the pressure those accused of injury- or death-related DUID’s will be under to plead “no contest” or “guilty”, even though they may be innocent of the charges?

In that scenario, the driver’s THC levels are at or above the threshold level set by the legislature, they would be presumed guilty and may conclude it’s to risky to go to trial and it’s in their best interests to accept an offer of probation and local jail time in order to avoid being sent to state prison.

Choosing to reject a plea bargain that allows the driver to avoid a commitment in state prison usually results in the DA withdrawing their offer and pushing for a state prison sentence, in the event the driver is found guilty at trial. So, does the driver take a risk and hope they will be able to rebut the presumption of guilt at trial, even in cases where they haven’t consumed marijuana days, or even weeks?

What information did the arresting officer put into his report? Was there a Drug Recognition Expert evaluation done and how accurate is it? Are there any witnesses to help the driver rebut the presumption of guilt? And, what does a medical marijuana or regular consumer of marijuana do in this instance? Science tells us regular users develop a tolerance to the impairing effects of marijuana. Do they throw the dice and risk going to state prison?

As studies have shown, THC builds up in the body’s fat cells over time and remains there for weeks or months after abstaining from any consumption of marijuana.

“The most meaningful recent study measuring driver “culpability” (i.e., who is at fault) in 3,400 crashes over a 10–year period indicated that drivers with THC concentrations of less than five ng/mL in their blood have a crash risk no higher than that of drivers without any THC in their bodies. The crash risk begins to rise above the risk for sober drivers when a marijuana user’s THC concentrations in whole blood reach five to 10 ng/mL” (The Marijuana Policy Project in Washington, D.C. (MPP, “Driving Under the Influence Laws and Medical Marijuana Patients: Zero Room for “Zero Tolerance”).

However, this does not mean all drivers will be impaired when they have that concentration of THC. Regular marijuana consumers’ blood can contain detectable amounts of THC long after they last used marijuana, leading some experts to caution that heavy use results in “cannabis concentrations in sober phases that resemble concentrations found in occasional users after acute

cannabis use.”

If per se limits for marijuana-related DUID’s are enacted in California, even those who are only 1% at fault in an accident that causes injury or death to another may be presumed guilty of a felony or misdemeanor.

With a presumption of guilt hanging over their heads, how many innocent people will plead “guilty” or “no contest” to felony charges in order avoid prison even though they may have been completely sober at the time of driving?

Stay tuned for “Marijuana DUID’s and Per Se THC Limits” – Part 4.


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About the Author

Since 1996, Joe Hougnon, Esq. has provided the best legal services for DUI, Criminal charges & personal injury cases in northern California.