Marijuana has created a confusing legal vortex for the enforcement of impaired driving laws. In contrast to alcohol, there is no set blood level at which a driver is legally impaired by marijuana. California’s new recreational marijuana law also makes it more difficult for an officer to determine whether a driver has exceeded the allowable limit of marijuana for personal use. Finally, federal law makes the transportation of any amount of marijuana a federal crime. While the Department of Justice has not, historically, expended funds for the prosecution of defendants who were following state law, this is a policy choice which is subject to change with each new administration.
The Preliminary Determinations in a DUI Investigation
Before determining if a driver is impaired, law enforcement officers must first determine whether the driver has a legal right to possess or consume marijuana at all. Prior to November 9, 2016, California drivers could only do so by the possession of a valid medical marijuana card. Now – with the legalization of recreational marijuana – any person in California may possess up to one ounce of marijuana or six plants. An officer who pulls over a California driver on suspicion of DUI must therefore first determine: (a) if there is marijuana in the vehicle, and (b) whether it exceeds the legal limit.
While Californians may have a right to possess marijuana, it is still illegal to drive with an open container of marijuana in the vehicle. According to the Sacramento Bee, this applies to any receptacles or marijuana products that are open, have previously been opened, or have a broken seal. Continue reading