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What's a DUID (Driving While High) in California?

Weed lawyers Allison Margolin and Daniel Perlman explain the rules for drivers

Comments (0) By Michael Goldstein Thursday, Apr 12 2012

Click here for 20 Questions withRick Steves,pot advocate and famed travel writer.

Lawyer Allison Margolin

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The mainstream media have been sounding the alarm about "drugged driving." According to the California Office of Traffic Safety, 30 percent — a number that has been increasing since 2006 — of all drivers killed in motor-vehicle crashes in the state tested positive for legal or illegal drugs. Of course, the "drugs" category includes prescription drugs, methamphetamine, heroin, Ecstasy, even synthetic drugs like Spice and bath salts.

Nonetheless, in such news coverage, marijuana is the main villain.

Rolling Paper asked two leading attorneys specializing in driving under the influence and criminal defense, Allison Margolin of margolinlawrence.com and Daniel Perlman of danielperlmanlaw.com, to explain the definition of a DUID, or driving under the influence of drugs, as well as how medical marijuana patients can protect themselves from arrest and what to do if you're stopped.

Their first advice, of course, is not to drug or drink — and then drive.

ROLLING PAPER: Under California law, is there a legal term DUID, "driving under the influence of drugs"?

DANIEL PERLMAN: No. In California, the DUI law is split in two sections, one of which covers controlled substances. California's DUI law is Section 23152 of the Vehicle Code; 23152b (the "b" count) is the part of the law most people have some familiarity with. It mandates that you cannot drive with a blood alcohol of .08 or greater. This is why most people think they are OK to drive home after averaging a drink an hour.

The truth is far from this. The part of the law most people are completely unfamiliar with is 23152a, or what we refer to as the "a" count. It means roughly that you may not drive while under the influence of drugs and/or alcohol. It's important to understand that there is no objective measurement. If the officer thinks you are impaired, you can be prosecuted for an alcohol DUI, even if you have only a .01 BAC (blood alcohol content). You could have had one beer and driven two hours later and still might be hooked up if you're pulled over. Practically speaking, this does not happen, but once in a while it does.

The other part of this is that it covers both drugs and alcohol. Drugs include prescription medications, as well as controlled substances, from marijuana and coke to meth, etc.

Many people I've known over the years will aggressively tell you that they drive better stoned. That's simply untrue, as reaction times are severely impaired.

Is there any legal threshold for marijuana, such as the .08 BAC for drunk driving?

ALLISON MARGOLIN: No. There's a different threshold for presence, not for impairment.

PERLMAN: There is no threshold for an arrest under 23152a. It is entirely subjective. If they smell it, you're probably getting hooked up. However, when you take a urine or blood test at the station, the lab will test for the presence of metabolites like THC; the level/presence of these chemicals will help the prosecutor determine whether to proceed with the case. [THC from marijuana is metabolized into molecules known as metabolites, which are stored in body fat and are gradually eliminated. It takes two days to six weeks to clear THC metabolites from your system, depending on usage.]

Are there any legal or penalty differences between a DUI and driving under the influence of drugs?

MARGOLIN: Many times, with DUI-drugs they don't take your license because they don't get the urine results in time. When you get a DUI, there are two sets of consequences: the court hearing and the DMV hearing, a complicated mess about whether your license will be suspended.

PERLMAN: The impact, if convicted or pleading guilty (no contest), is similar. The biggest difference is likely to be that the DMV will not take initial action to suspend your license while your case is still proceeding. In an alcohol-related DUI, it immediately moves to suspend via the APS [administrative per se] hearing. In a drug-related DUI, DMV waits to see what happens in the case.

Are there any differences in the punishment?

MARGOLIN: The law is really about impairment, if you don't operate a motor vehicle "with the same prudence and caution" as a sober person. I've had cases where it was just the smell of marijuana, plus a vehicle-code violation — a light that was out, an old registration, etc.

Most of the time I've been able to negotiate a non-DUI misdemeanor, because it's hard to prove impairment. They're testing for metabolites in the urine, it could be from the last 30 days. However, the presumptive time of use is within six hours. If they smell it and there's an admission and a nugget of OG Kush in the car, if there's an accident, there's no negotiating with DUI. It can be a felony with an accident or even a strike if you have a previous felony.

Is there a test used by LAPD/CHP for marijuana? Or is the so-called field sobriety test applied?

MARGOLIN: They always use the field sobriety test, where you stand on one leg, walk and turn, and take the horizontal-gaze nystagmus test [the police officer instructs the person to follow a light with his or her eyes]. You can have your own expert challenge it, for example, if they don't videotape the test but only the stop.