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Marijuana DUI Lawyer

Although Marijuana has been legalized for recreational use in California, it is still illegal to operate a motor vehicle while under the influence of marijuana. That said, employing the services of a marijuana DUI lawyer is very useful if you have been charged with driving under the influence of marijuana. Although the field sobriety tests for marijuana are the same as for alcohol, chemical tests are still being developed and, at this point in time, are challengeable in the sense that there is a good possibility that not all chemical tests are as reliable as, for instance, a breathalyzer (which has challengeable issues of its own, despite its widespread use).

I. Marijuana DUI and Possession of Marijuana While Driving
  1. Applicable Law

    The following provisions sections of the California Vehicle Code define the offense of marijuana DUI and possession of marijuana while driving:

    1. California Vehicle Code 23152 (e)
    2. California Vehicle Code 23222 (b)

    As with alcohol, California Vehicle Code 231152 criminalizes the act of driving while under the influence of any drug, including marijuana. Possession of marijuana while driving is similar to marijuana DUI, but is a separate offense under section 23222(b) of the Vehicle Code.

  2. Marijuana DUI


    Marijuana DUI can be proved by the State under California Vehicle Code §23152 (a) by showing the following elements:

    1. The defendant drove
    2. At that at the time of driving, and
    3. Due to marijuana use,
    4. The defendant’s physical or mental abilities were impaired
    5. To the degree that she no longer had the ability to drive a vehicle with the caution a sober and ordinary person would use under the same or similar circumstances.

    Manner of Proof 

    Unlike alcohol, there is no set amount of marijuana in the bloodstream that can be used to establish impairment. As such, marijuana DUI must be shown under subsection (a) of California Vehicle Code §23152 through the use of subjective evidence such as the defendant’s physical appearance, manner of speech, and behavior.


    The penalties for a conviction of marijuana DUI are the same as those applicable to alcohol DUI cases, as discussed above. As with alcohol, if a marijuana DUI offense results in the death or injury of a third party or the conviction occurs within ten years of three separate prior DUI convictions, the State may charge the offense as a felony, subjecting the defendant to the possibility of facing the more serious penalties discussed above.

    Medical Marijuana Card 

    Legitimately possessing a medical marijuana license is not a defense to marijuana DUI because Vehicle Code §23152 prohibits driving while under the influence of marijuana as a drug—not its possession. Even over the counter drugs can result in a DUI conviction if their use caused impairment to the driver’s abilities such that she could no longer drive with the caution of a sober and ordinary person in similar circumstances. As such, the legality of possessing the marijuana is irrelevant as it is the defendant’s physical and mental state that is determinative.

  3. Possession of Marijuana While Driving


    California Vehicle Code §11357(b) prohibits a person from possessing marijuana amounting to less than one ounce while driving a motor vehicle. To prove the offense, the State must show that the defendant was driving; that while driving, the defendant possessed marijuana and; that the amount of the marijuana was less than one ounce.

    Manner of Proof 

    Driving the vehicle is shown in the same manner as discussed above, where a volitional movement of the vehicle is required. Possession is found by showing that the defendant had control over the marijuana.

    Control can be found by showing that the defendant had direct, physical control over the substance, such as if a defendant was seen driving while holding a lit joint (actual control). Control can also be established by showing that the defendant had access to the marijuana and a right to control it. An example of this type of possession is where marijuana is found inside a bag owned by the defendant in the backseat of the vehicle defendant was driving (constructive control).


    Under §11357(b), possessing marijuana while driving is punishable as an infraction carrying a $100 fine.

    Medical Marijuana Card 

    The possession of a legally issued medical marijuana identification card is a defense to the charge of possession of marijuana while driving. California Vehicle Code §11357(b) criminalizes the state of illegally owning or controlling marijuana regardless of whether the person has used the substance. But if the person can show that her ownership or control of the marijuana is legal, then her possession of the substance is not illegal and not subject to the provisions of §11357(b).

    A California medical marijuana user or caregiver can assert this defense as such persons must be able to transport the drug from the dispensary in order for the drug to be used for medical purposes.

In order for our marijuana DUI lawyer to be able to best defend your driving privileges, call our office today to tell us about your case.

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