Possession of Medical Marijuana While Driving – What Are The Penalties? Q&A


Q.  My son was arrested for drunk driving but they also found a small amount of medical marijuana in his possession. Since, medical marijuana is legal in California, can he still be sited for driving under the influence of marijuana?

A. That depends. While medical marijuana is legal in California with proper medical documentation, driving under the influence of medical marijuana might not be, especially if the prosecutor in your son’s case can prove that your son was mentally or physically impaired as a result of the marijuana such that he could not operate his vehicle safely under the circumstances.

Your sons case is complicated by the presence of alcohol, since it is entirely possible that his impairment, if any, was caused by the ingestion of alcohol and not necessarily by the use of marijuana.

If your son submitted to a blood test at or near the time of his arrest, both the level of alcohol and the level of marijuana (THC) will be detected in his blood. However, as you will see below, determining when the marijuana was actually consumed is a another matter entirely and therefore complicates the prosecutors case with respect to the marijuana allegation.

Drawbacks Of Blood Test Measuring Impairment Resulting From Marijuana Use

Blood tests are extremely accurate in detecting the presence of marijuana, but inaccurate and unreliable in determining when and how much marijuana was consumed and whether your son was high at the time he was driving. Another words, the prosecutor will have a very difficult timing proving that your son was impaired by marijuana at the time he was driving– and that will be the operative hurdle for the prosecutor to overcome in proving his case.

It is not illegal to drive a vehicle with marijuana is in your blood stream, since the blood test can not know whether your son consumed the marijuana in the past four weeks or just before he entered his vehicle. The prosecutor would simply be unable to prove beyond a reasonable doubt when the consumption of marijuana occurred and therefore whether it was a substantial factor in causing actual impairment at the time he was driving, which is a necessary element of proving the case.

Alcohol however is a different matter entirely since a presence of .08 or more of alcohol in the blood is presumptive with of impairment at or near the time of the driving and subsequent arrest.

Current Political Climate: Law Enforcement Less Aggressive On Medical Marijuana Cases

In California, a permissive medical marijuana state, assuming your son has both current and proper medical documentation, under the states medical marijuana laws, technically, under the circumstances, your son’s legal defense is fairly strong.

Even if your son did not have a California medically prescribed  medical marijuana identification card, while possession remains illegal under those circumstances, the crime would likely only be an infraction depending on the quantity in his possession, and therefore problematic for the prosecutor to charge even within the context of a drunk driving charge. The penalty for such an infraction is a fine – the cost of which is usually no more then a traffic ticket.

A creative prosecutor however could try to prove that it was the “combination” of medical marijuana and alcohol that produced your sons state of impairment while driving, but this too would be a difficult hurdle since proving impairment by marijuana is still so problematic. But you must keep in mind that a finding of impaired driving does not require an illegal drug for a person to be convicted of driving under the influence charge.

Majority Of Americans Favor Medical Marijuana

In April 2012, a national survey released by Pew Research showed for the first time in more then forty years of polling, that the majority of Americans now favor legalizing the use of marijuana. Specifically, that 52% of Americans polled now believe that the use of marijuana should be made legal, while 45% polled say it should remain illegal.

Under the polls findings, not only do the majority of Americans now support legalization, according to the poll, nearly 72 percent of those surveyed also believe that the cost of federal law enforcement efforts in battling marijuana use is no longer worth the money or effort.

The poll clearly indicates that most Americans simply do not see marijuana as a gateway to more dangerous drugs or that its use is either immoral or detrimental.

Given that public sentiment has dramatically shifted in favor of marijuana legalization, you will likely see prosecutors stand down on cases involving possession and use of marijuana as well. The real question is whether the federal government will follow the nations lead. Currently possession and use of marijuana is still a felony under federal law.

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