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.
PERLMAN: LAPD, CHP, L.A. Sheriff's Department, etc., rely on the very subjective set of tests collectively called FSTs, or field sobriety tests. The single-page document on which officers report their observations does not have any place to indicate a good or error-free performance. There are only places to indicate mistakes, etc.
If you are stopped by the police on suspicion of DUI(D), what should you do?
MARGOLIN: If you have had anything to drink or smoke, don't take the field sobriety test, even if they threaten to arrest you. … The reality is that they can arrest you at any time if they think you're impaired. For sure, if you're impaired, don't take it. Or if you've had a drink. Field sobriety tests can reflect even a .05 BAC [a legal amount of alcohol]. If you're uncoordinated, or have a disability, it could look like you're impaired.
PERLMAN: This is on my business card and website: “You may relate or even read the following to the officer: I hereby invoke my right to remain silent, and wish counsel to be provided if I am being detained, or arrested and questioned.
“I respectfully refuse to submit to field sobriety testing and a preliminary alcohol screening device [PAS breath test].
“I will submit to a breath or blood test in conformity with implied consent ONLY.
“I do not consent to a search of my person, vehicle, residence, business and/or property.”
Remember, these officers are listening for you to make admissions of guilt. It actually costs me about six DUI cases a month, but I'm very happy when I get a call or an email that says someone made it through a checkpoint or DUI stop because they followed the instructions on my card.
Should you stay silent even if threatened with arrest? If arrested, what should you do?
MARGOLIN: The jury is not allowed to infer your guilt from your silence. The more you say, the more evidence.
PERLMAN: As a general rule, you cannot talk your way out of an arrest, only into an easy conviction. Be cooperative, friendly and frank. Even if you don't have a lawyer, always blame your lawyer — as in, “My attorney told me to never talk to the police.” Most of my clients would have walked on their cases if they had kept their mouths shut.
Alcohol is usually gone from your body within 12 hours, but marijuana can linger a week or longer.
PERLMAN: Yes, but the quantity of the metabolite necessary for the DA to proceed on a DUI charge will be gone from your system far quicker than that. Typically, even though I've seen arrests due to finding some weed in the ashtray or smelling it there, if you haven't smoked that day, they are unlikely to prosecute. You will, however, have already suffered the arrest, having your car impounded, etc.
MARGOLIN: [Metabolites can last], like, 30 days in urine. Blood, like, a day. If you haven't smoked that day, you may want to take a blood test. The blood test is more accurate. If it's in your urine, it's more [open to] debate.
So there is no set limit on the THC in your blood before you're automatically deemed intoxicated?
PERLMAN: It is arbitrary, and likely varies by DA, courthouse and county. But if the officer thinks you were impaired, he will proceed against you.
Can you explain “per se” laws in states like Nevada and Arizona for testing THC metabolites in blood and urine?
MARGOLIN: These are laws similar in concept to the statute in the [California] Vehicle Code, which criminalize having in excess of .08 BAC, except that in Arizona, [where] having ANY amount of THC in blood or urine is sufficient to convict for a DUI.
MG: After Nevada enacted a strict “per se” law limiting the amount of THC motorists are allowed to have in their blood, drugged-driving arrests increased 76 percent, perhaps partly because Nevada is a medical-marijuana state. A similar law, AB 2552, which, advocates believe, would make any driver found with above-zero levels of cannabinoids in blood or urine presumptively guilty of DUI, was recently proposed in California by Assemblywoman Norma Torres of Pomona.
Once someone is released on bail, what are strategies for fighting a conviction for DUI(D)?
MARGOLIN: That there was no impairment, just metabolites. Can't tell when the person used it. That the driving wasn't impaired. It's a smell test — if the jury believes there's impairment, they're quick to convict.
PERLMAN: Call your attorney and let him explain it to you based on the particular facts in your case. We are able to at least get a reduction in nearly 75 percent of our cases.
About 70 percent of DUI arrests result in conviction. Is this true for marijuana cases?
MARGOLIN: They don't try many marijuana cases because it's hard. The common understanding is that people can drive with a little marijuana in their systems. Don't admit to use of marijuana or alcohol. Say, “I have a right to a lawyer.” They'll try to intimidate you, threaten to arrest you. Don't say anything. Always be polite to the officer.
PERLMAN: The conviction percentage is so high primarily because of the rumor that attorneys can't help you with a first offense and therefore they walk into court by themselves and plead guilty.