The proliferation of medical marijuana legislation and increase in the number of people regularly using marijuana has raised difficult questions for DUI attorneys. Most thorny is how much can a person smoke and still be able to safely drive? In alcohol cases, there are mountains of laboratory studies correlating impairment with specific blood alcohol levels. Most agree that .08% is the level at which all people are too intoxicated to drive. There is no such clear cut level for marijuana in the body.
Under California Vehicle Code section 23152(a), it is against the law to drive while under the influence of any substance, including marijuana. This is true even if the driver has a valid medical recommendation. However, coming up with an objective limit for marijuana has been elusive. Different people will exhibit far different reactions to different levels of THC in their blood. Scientists just cannot agree on that “.08” standard for marijuana. Two states have set 5 nanograms per milliliter of blood as a limit. Others have set a zero tolerance level. Washington and Colorado have proposed setting the level at 5 nanograms per milliliter of blood. Unfortunately, any of these levels are arbitrarily arrived at, without solid scientific studies to back them up.
A saliva test that could be used at the roadside is currently under development. This test would determine if the subject has recently ingested marijuana. However, it would be incapable of determining how much the person has ingested. It would rely on the subjective and biased observations and field sobriety tests of the officer to draw the conclusion that the subject is too intoxicated on marijuana to drive safely. This is hardly better than what we face now when defending marijuana DUI cases.
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