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Marijuana DUI The most important aspects to defending

Posted by Jonathan Rooker | Mar 21, 2018 | 0 Comments

Fresno DUI Defense Attorney tells you the most important aspects defending a marijuana DUI.

  1. Per Se Levels: A per se level is a level, such as 2.5ng/ml or 5.0 ng/ml. Unlike other states that have a “Per Se” level of THC in your system that serves in a similar capacity as the 0.08% BAC in alcohol DUI's, California does not yet have a Per Se level.  This means that the prosecution must prove you were actually impaired by the THC or a combination of drugs or drugs and alcohol to prove their case in the court of law.
  1. How do they show a person is impaired by Marijuana?  

    To Show impairment the prosecution may use a combination of factors:

  • Driving pattern:A subjects driving pattern may be used to show impairment.  This could be driving speed, both too fast and too slow, or even stopping at a green light.
  • Field Sobriety Tests:Many times, the officers will give the subject field sobriety tests.  It is interesting that these tests have not ever been scientifically validated to show impairment due to THC, the active ingredient in Marijuana.  (More on this subject in the DRE Portion)
  • Observed indicators:Watching a person walk, hearing them talk, seeing their mannerisms may also provide indications that can be used.  Smelling recently burned marijuana, finding marijuana in the vehicle or on a person, and even paraphernalia of Marijuana can be an indicator of recent use, and thus, possible impairment.
  • DRE:  A Drug Recognition Exam-  This is a longer version of FST's, that is used by specially trained officers to look for the presence of a drug in a person's system.  Fresno DUI Defense Attorney Jonathan Rooker has had specific training on FST's also completing the instructors course.  Following this, Mr. Rooker completed an Advanced Roadside Impaired Driving Enforcement School.  This helps Mr. Rooker effectively cross examine officer to see if they performed the tests correctly.  (More on this subject below in the DRE: What are they looking forsection)
  • What happens if I'm convicted of a Marijuana DUI?  In short, it is treated very similar to an alcohol related DUI.  Most courts levy a similar if not exactly the same sentence to punish you for your conviction.  The court sends a notice to the DMV, and they take action against your license.  It can also be used as a prior if you are convicted of a subsequent DUI, for alcohol, Marijuana, or other substances.
  • DRE: What are they looking for?
  • HGN: Horizontal Gaze Nystagmus- HGN is the involuntary jerking of a you eyes.  This is what they officers look for when they have you follow their finger, light, pen, or stylus with your eyes. This has not been found to be caused by the presence of Marijuana in a person's system.  
  • VGN:  Vertical Gaze Nystagmus-This is when the officer has you follow his finger, pen, light, or stylus in a vertical direction, typically making your eyes rotate upward in your eyes sockets, as if you were trying to look at your own eye brows.
  • LOC:  Lack of Convergence-This is when the officer directs your eyes via stylus or other method to converge, which is simply having you cross your eyes.  Unlike HGN and VGN, LOC is a sign of marijuana use.   This may be used to show the presence of marijuana.
  • Pupil Size:Marijuana has been found to cause pupils to dilate.  The presence of dilated pupils can be used to show that marijuana may be present in a person's system.
  • Internal Clock:This measures a person's ability to estimate time.  It is typically a person's ability to accurately measure a 30 second time period that is tested.  The farther from the target goal, the more likely the officer will conclude you have using marijuana.  This test is also used as part of a battery of tests and may be a sign of other drugs in a person's system.
  • Other Factors:These include Increased appetite, odor of Marijuana, Plant debris in mouth or tongue, impaired awareness of a time and distance, possible paranoia in high doses, relaxed inhibitions, disorientation, Muscle tremors, eyelid tremors.
  • Do I have to take these tests?  The simple answer is “NO” you do not have to answer any questions about when you smoked, why your car smells like marijuana, or if you have marijuana on you.  Even more importantly, you DO NOT have to take these tests.  These tests may be used to prosecute you for Marijuana DUI, and it may not be in your best interest to assist the officer in his investigation, as he is part of a prosecution team.  
  • DMV:  Please remember that the DMV may suspend your license for refusing a chemical test.  If arrested for driving while impaired, you may refuse chemical test.  However, there are severe DMV penalties and suspensions that may be imposed.
  • Refusal:  Refusing to submit to a chemical test may lead to the officer acquiring a warrant to draw your blood, by force if needed.  It may also lead to an enhancement if convicted, which could increase the punishment you receive from the courts.
  • Metabolites:  There are three types of a THC that may be found in a person's system.  The first is an active metabolite that is usually present for about 2 hours after smoking marijuana.  Because it is an active metabolite, it actively effects the brain or central nervous system.  There is a second metabolite that is present for approximately 6 hours, although that may vary greatly from person to person, and dosage of a TCH ingested.  However, the most commonly found metabolite stays present for up to a few weeks and may even “reappear” on tests after testing has shown no traces of it.  This is because this metabolite is stored in fat cells, and a person burning fat cells that contain this metabolite would release these into the blood stream, resulting in a “reappearance” of this metabolite in the blood stream, thus testing positive.  The good part of this is that this metabolite is ‘Inactive” meaning incapable of impairing a person.  So the presence of this metabolite would not lead to impairment.  Don't be fooled by the presence of an inactive metabolite of THC or let the prosecution scare you with lab reports.  Call Fresno DUI Defense Attorney Jonathan Rooker for help with your case.

See Also: Fresno and Madera DUI Lawyer

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About the Author

Jonathan Rooker

Fresno DUI Attorney & Criminal Defense Attorney Jonathan Rooker is an experienced and aggressive attorney. His education and work ethic help him separate himself from the other attorneys. He provides quality legal defense at an affordable rate.


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