When the new pot laws went into effect on January 1, 2018, there were a lot of questions – namely, how would police enforce driving under the influence of marijuana. The truth is, there is currently not a 100% accurate way of testing if someone is currently (meaning in that exact moment) under the influence of marijuana.

No 100% Accurate Way of Testing for Marijuana DUI

When a person is suspected of driving under the influence of alcohol, police officers typically subject her or him to a Breathalyzer test. But there is no “Breathalyzer” for marijuana impairment.

In fact, testing for “in the moment” marijuana impairment can be especially hard because of the way the drug remains in someone’s system for an extended period of time. It’s hard to deduce if someone smoked 2 hours ago or 2 weeks ago.

That means that it’s very difficult to prove someone is under the influence of the drug at the time of being pulled over.

This “grey zone” leaves plenty of room for doubt in a court room where a prosecutor must prove, without a shadow of a doubt, that a person was under the influence of Marijuana at the time they were driving.

How do Police Test for Sobriety?

So how do police test for marijuana impairment? They use the same field tests as alcohol impairment. A field sobriety test is a series of exercises administered by police to determine if a driver is impaired. These field sobriety tests are pretty standard and if you fail, that gives police probable cause to arrest you.

Standard Sobriety Tests

The three “standardized” tests are the “horizontal gaze nystagmus test”, the “walk and turn test”, and the “one-leg stand.” We outline all of them below.

Horizontal Gaze Nystagmus Test

  • During this test, an officer moves an object, usually their own finger, from side to side in front of a person’s face. The person is asked to follow the object with their eye. Officers use this as a way detecting an involuntary jerking of the eye associated with high levels of intoxication. A person’s eye will reportedly jerk naturally after being strained beyond a 45-degree angle. If the person is under the influence, the eye begins moving or jerking before getting to that 45 degree. CA police officers can reference this reaction as evidence.
  • The National Highway Traffic and Safety Administration (NHTSA) estimates this tests is 77% reliable.

Walk and Turn Test

The “walk the line” test is meant to split the suspect’s attention between physical and mental tasks. A suspect will “walk a line” while the officer observes if any of the following occur:

  • Loss of balance
  • Wrong number of steps
  • Inability to stay on the line
  • Breaks in walking
  • Beginning before instructed

NHTSA estimates that this test is effective 68% of the time.

One Leg Stand Test

During the “one leg stand” an officer instructs the suspect to raise his or her foot, hold still, count, and look down. This test is meant as another way to split a suspect’s attention. An officer may arrest the suspect if any of the following behaviors are observed:

  • Swaying
  • Hopping
  • Putting foot down

NHTSA estimates that this test is effective 65% of the time.

Additional Test: Blood, Breath, Or Urine

In California, there is an “implied consent” law which means that all drivers that are pulled over under the suspicion of being under the influence must submit to at least a blood, breath, or urine test.

California law generally allows the driver to choose between a blood or breath test. A urine test is the most uncommon. If officers are unable to administer a blood or breath test (due to a suspect having hemophilia or taking anticoagulants for a heart condition), they will defer to a urine test.

For Marijuana, using blood, breath, or urine tests to determine whether a person is under the influence of THC at the time they were driving can be inaccurate because of the way marijuana reacts in the system. A person will still positively up to two weeks after use – or even longer – after using it. The tests are unable to determine whether Marijuana was consumed within the last few hours versus days or weeks prior to being pulled over – which is legal now that pot is a legal substance in California.

Saliva Drug Swab Test

In light of the inaccuracy of blood, breath, and urine testing, a new method of testing is being put in place – drug saliva swabs. The test is roughly eight minutes long and uses a person’s saliva to detect THC, crystal meth, methadone, cocaine, and several other prescription medications. The test works by detecting trace amounts of drugs in the suspect’ saliva, but there can be traces of some drugs in your saliva up to three days after consuming them.

The accuracy of these tests is still unclear.

Keeping Yourself Safe

According to the Auto Club of Southern California (AAA), if you are arrested for driving under the influence in California the cost can be about $16,000. You’ll want to know the best steps to keep yourself safe, keep others safe, and keep yourself out of jail during big police crackdowns.

Here are some additional tips for safe driving during big event weekends and holiday weekends:

  • Have a plan before the party – that way you know how you’re getting home before the event even starts.
  • Designate a sober driver and then leave your car keys at home.
  • If you’re drunk and need to get home, use a taxi, ride-sharing service, call a sober friend or family member or use public transportation.
  • Call 911 immediately if you see any indications of an impaired driver on the road.
  • If you are pulled over on suspicion of driving under the influence, immediately contact a criminal defense attorney. They will be able to advise you on next steps in your case.

Drunk Driving Charges

Drunk driving charges are serious and carry serious consequences not just on holiday or big event nights, but every night. While penalties will vary from case to case, here is a break-down of the sentencing guidelines and what you face if you are convicted of driving under the influence.

First DUI Conviction

For a first DUI conviction in California, a person receives:

  • Jail-time for no less than 96 hours and no more than 6 months.
  • A fine for no less than $390 and no more than $1,000 (plus penalties).
  • Suspension of driver’s license for six months. A court may grant a temporary restricted license. Your driver’s license cannot be reinstated until you have provided proof of financial responsibility and proof of completion of a state-approved “driving under the influence” program.
  • Depending on the circumstances of DUI, a first time DUI offender may also be required to install an Ignition Interlock Device. This will be done at the offender’s own expense.

For a second DUI conviction in California, a person receives:

  • Jail-time for no less than 90 days and no more than 1 year.
  • A fine for no less than $390 and no more than $1,000 (plus penalties).
  • Suspension of driver’s license for 1 year. Your driver’s license cannot be reinstated until you have provided proof of financial responsibility and proof of completion of a state-approved “driving under the influence” program.
  • Depending on the circumstances of DUI, a first time DUI offender may also be required to install an Ignition Interlock Device. This will be done at the offender’s own expense.

For a third DUI conviction in California, a person receives:

  • Jail-time for no less than 120 days and no more than 1 year.
  • A fine for no less than $390 and no more than $1,000 (plus penalties).
  • An offender will be considered a “habitual traffic offender” by the state for 3 years following the conviction.
  • Suspension of driver’s license for 2 years. Your driver’s license cannot be reinstated until you have provided proof of financial responsibility and proof of completion of a state-approved “driving under the influence” program.
  • An offender might be able to apply for a restricted driver’s license, but installation of an Ignition Interlock Device may be required.This will be done at the offender’s own expense.

For a fourth DUI conviction in California, a person receives:

  • Jail-time, prison or both, for no less than 180 days and no more than 1 year.
  • A fine for no less than $390 and no more than $1,000 (plus penalties).
  • An offender will be considered a “habitual traffic offender” by the state for 3 years following the conviction.
  • Suspension of driver’s license for 3 years. Your driver’s license cannot be reinstated until you have provided proof of financial responsibility and proof of completion of a state-approved “driving under the influence” program.
  • An offender might be able to apply for a restricted driver’s license, but installation of an Ignition Interlock Device may be required. This will be done at the offender’s own expense.
  • If you are arrested and convicted of a DUI in California, a judge will typically apply a set of minimum and maximum sentencing guidelines. A judge will also weigh the specifics of your case in addition to previous convictions.

Illegal in California

It’s important to remember that while driving in California, the following is illegal:

  • Drivers under 21 are not allowed to transport or carry unsealed beer, wine,or liquor in their vehicle when they are driving alone. Exceptions can be made for work-related driving.
  • Drivers under 21 are not allowed to drive with a blood alcohol concentration level (BAC) of .01 or higher.
  • Drivers under 21 are not allowed to consume alcohol in any form, including cough syrup, and prescription drugs.
  • Any driver, regardless of age,is not allowed to drive with a BAC of .08 or higher. This is a standard BAC measurement used by all states to establish that a driver is impaired.
  • The driver of any vehicle that requires a commercial driver’s license may not drive with with a BAC of .04 percent or higher.
  • A driver under 18 is not allowed to drive with ANY measurable blood alcohol concentration.
  • Repeat offenders are not allowed to drive with a BAC of .01 or greater.
  • These drunk driving laws are similar to many other DUI laws across the United States.

Working with a Criminal Defense Lawyer

If you are facing a DUI conviction, you’ll want to work with a criminal defense lawyer that handles DUI cases. Once you and your attorney have discussed the specifics of the allegations you are facing, you will be informed about the strengths and weaknesses of your case, including the risks of conviction and punishment that you face. A defense attorney will be able to negotiate a plea deal or decide to move forward with a trial, while constantly working to ensure your best interests.

The criminal defense lawyers at Daniel Perlman Law in Los Angeles will put our experience to work for you. We believe every defendant has the right to a zealous defense. We offer free initial consultations and will usually quote a flat fee that will cover all the services necessary for your case, including trial. To schedule a free consultation with one of our Los Angeles criminal defense lawyers, call 877-887-4541 or contact us by e-mail.

Daniel R. Perlman, Esq.
Law Offices of Daniel R. Perlman