Without argument, DUI laws have become increasingly harsher. The recent passage of Proposition 64, which has legalized recreational marijuana use, has our lawmakers now scrambling to toughen Driving Under the Influence laws.

These new proposed laws go beyond the current Vehicle Code 23152(e), which states that an individual is guilty of DUI if driving a motor vehicle while one's mental abilities are impaired by marijuana, to the extent that one is unable to drive with the caution of a sober person using ordinary care.

The fact is that the current state of research on the effects of marijuana on the ability to drive is incomplete. There are a number of studies indicating little or no discernable difference in drivers who had smoked versus those who had not.  Clearly the federal government's categorization of marijuana as a “Class A” controlled substance “having a high potential for abuse and no currently accepted medical use” has limited the opportunities for research. The bottom line is that the government seems to be rushing to establish criminal limits without first confirming cannabis' effects.

There are currently six (6) bills in the California legislature, most concerning Driving Under the Influence of Cannabis. These bills have not yet been passed and are undergoing hearings, with arguments both for and against.

One such bill, SB 65, would increase the penalty for smoking while driving to a misdemeanor. Currently, under Proposition 64, the penalty is an infraction…the same level as a speeding ticket or sign violation. Passage of this bill would mean that an individual, even with no signs of impairment, would be subject to criminal prosecution for a misdemeanor. This can expose one to the  possibility of fines and jail, and most importantly, a criminal record!

Another bill, SB 698, would establish a “per se” standard of 5 nanograms if the driver is also found to have a Blood Alcohol Content of between .04 -.07%. Simply put, the government is reaching to set a standard that an individual below the legal alcohol limit of .08% who has a small amount of cannabis (5 nanograms or more) would be subject to misdemeanor prosecution.

My opinion and experience is that neither prosecutors nor their criminalists can definitively prove that all individuals are affected the same by cannabis.  Cannabis affects regular users differently than occasional recreational users.

While I have successfully represented numerous individuals accused of Driving Under the Influence of alcohol, drugs or their combined use, my recommendation is that usage of any substance that can cause impairment be avoided while driving.