Los Angeles DUI Lawyer Blog

Articles Posted in Marijuana Possession

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On January 1, 2018, recreational marijuana becomes legal. That means that you do not need a prescription to purchase it, nor will it be against the law. However, that does not mean that there are no restrictions on it’s use. Marijuana will be restricted just like any other similar substance, such as cigarettes and alcohol.

One such restriction is use while driving. Like alcohol, you cannot be under the influence of marijuana while operating a vehicle. California Vehicle Codes §20002 and 20003 make it unlawful to operate a vehicle while driving under the influence of alcohol and/or drugs. Marijuana, whether legal or not, falls under this category.

However, unlike alcohol, the influence of marijuana is more difficult to provide when stopped for suspicion of driving under the influence. In cases where there is suspicion of alcohol intoxication, an office may request that a driver submit to a blood alcohol test. The alcohol test may be taken through blood, breath or urine and gives an immediate measurement of the amount of alcohol that is in your blood stream at that moment in time. Alcohol will only remain in your blood stream for a minimal amount of time.

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When a person has been stopped for the suspicion of driving under the influence, it is easier for the government to prove when the influence is of alcohol versus another drug such as marijuana. When the person driving is under the influence of alcohol, a simple breathalyzer will detect the amount of alcohol in the driver’s bloodstream. Alcohol generally remains in the system while the person is under its actual influence. In other words, when alcohol is in the person’s system, they under the influence of its effects. It does not remain in the system while the person is fully void of its influence. Therefore, a measure of the amount of alcohol in a person’s blood stream will indicate the effect on the person’s body.

Marijuana does not work in the same way. The effects of marijuana that render a person too impaired to drive only effect the person for moments after first smoking it. However, for weeks after, the substance remains in the person’s bloodstream.

Let’s consider an example. David smokes with his friends on Monday afternoon. He is under the influence for some thereafter, but is no longer under its influence Monday evening. David does not drive anywhere until the next day. On Friday he is pulled over by officers for suspicion of driving under the influence. David is not under the influence of anything, but if officer’s were to request he take a blood test, there would be evidence of marijuana in his blood stream. This would be the case even though David was no longer under the influence of marijuana.

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\Many of our clients make the mistake of assuming that because they have not had a single alcoholic drink, but have only smoked marijuana, they are immune from being arrested for driving under the influence. This is absolutely not true.

California Vehicle code §23152 and 23153, specifically state that “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.”

This means that if you are under the influence of a drug alone and are found driving, you are still in violation of the relevant statue and officers may arrest you for a DUI.

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When you have been arrested on the suspicion of driving under the influence, you are only being charged with the potential of having committed an offense. This does not mean you are convicted. Before you can be convicted, the government must prove that you are guilty beyond a reasonable doubt, only then can you be found guilty of the offense.

The prosecutor must prove each element beyond a reasonable doubt. For a person to be found guilty of driving under the influence, they must be guilty of two elements; they must be found to be driving, and driving while impaired.

When a person has consumed alcohol and are driving, the Court has a guideline which they can follow to determine impairment. The government has found that if a person has a blood alcohol level of .08 or higher, they are reasonably impaired enough to the point where their driving may be impacted.

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California Vehicle Code §23152(a) explicitly states that it is unlawful for a person for a person to be under the influence of any alcohol or drug, or the combined influence, to drive a vehicle.

Many clients mistakenly believe that because they have had nothing to drink, they cannot be arrested on suspicion of DUI. However, that is definitely not the case. Any substance that causes a person to be impaired and not in complete control of their senses, will be harmful to their driving skills and could possibly be determined to be a DUI.

When a person is pulled over for suspicion of DUI, whether it is due to alcohol or other substances, the officers must have probable cause. It could be anything from the subjective weaving in and out of lanes, to the objective missing license plate or expired registration. The probable cause element is standard for any DUI case regardless of whether it is alcohol or drug related.

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California Health and Safety Code §11350 makes it unlawful for any person to be in possession of a controlled substance. Controlled substances are those listed under California Health and Safety Code §§ 11054 and 11055. These sections include the majority of common recreational or “street” drugs like heroin, cocaine, methamphetamines, certain hallucinogenic drugs and antidepressants. These sections, however, do not include marijuana. Marijuana is covered by California Health and Safety Code § 11357.

Drug possession cases in California are generally charged as a felony, and are not taken as serious offenses by the courts. However, an experienced Los Angeles Criminal Defense attorney knows that there much leniency for Drug Possession charges. With a powerful argument and the skill of a good lawyer, charges may be reduced from a felony to a misdemeanor, or in many cases, dismissed altogether.

If the drug allegedly found in your possession is certain types of depressants, the law may be read as a wobbler by the Judge. A wobbler is a law under which a charge may be filed as a misdemeanor or a felony, depending on the facts of the case. Prosecutors and Judges will consider the criminal history, if any, and the specific facts surrounding the case to arrive at a determination.

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California Health and Safety Code §11359 makes it unlawful to “possess for sale, any marijuana, except as otherwise provided by law”. The section is exclusively for possession for sale of marijuana, all other controlled substances and narcotics are regulated by California Health and Safety Code § 11351.

There is no set numerical value or test to show a person is guilty of Possession for Sale. Instead, a subjective test is used to prove that the person had intent to sell the drugs in their possession. To prove intent, Prosecution uses the Totality of Circumstances Method. The Totality of Circumstances method uses the specific facts and circumstances surrounding a case to make an argument.

If a person is found with a bag containing 20 baggies of carefully weighed out marijuana inside and a handful of cash in high bills, Prosecution will argue that they had carefully measured baggies to sell to customers, and the cash was from the sales they had already made. However, an experienced San Diego Criminal Defense Attorney can prepare a powerful defense that will present the facts in your favor.

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Plea Bargaining is a useful tool in many different criminal cases. A plea bargain is essentially an offer made by prosecution. If you agree to plead guilty prosecution will agree to give you a lesser charge and consequently a lesser penalty.

In drug possession cases, plea bargaining can have beneficial results and with the help of an experienced Los Angeles Criminal Defense attorney may be dismissed. An attorney will prepare a powerful argument convincing the Judge to allow you to enroll in a Drug Diversion Program. Many drug possession cases allow for rehabilitation and education classes that, if completed, lead to a dismissal of your case.sThis leaves your permanent record clean, and you would not be required to report it when asked.

For example, if a first time offender has been charged with a sizeable quantity of cocaine they could face possibly felony charges. However, a knowledgeable Los Angeles Criminal Defense Attorney would prepare a defense presenting the client in a positive light. The Judge would consider the strong argument presented in court and may grant the option to enroll in a Drug Diversion program, or in the very least reduce the charges. If a Drug Diversion program is completed, the charges will be dismissed. This is not only greatly beneficial to your future, but also helps you with future employment of educational institutions.

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California Health and Safety code §11357 makes it illegal to have marijuana in a person’s possession. The only exception to this law is if someone holds a valid medical marijuana prescription. A prescription is available to those who are determined to be qualified by a licensed physician.sIt allows for holders to have in their possession no more than 8 ounces of marijuana to use for medicinal purposes. California recognizes the prescription as a valid exception, but not in vehicles. Even with a medical marijuana prescription, a person is not allowed to have it in their possession while in a vehicle. They may, however, transport it in their trunk, as long as it is the lawful amount or less.

Similarly, a person caught with marijuana in their possession in a vehicle without a valid prescription, may be charged under California Vehicle code §23222. California Vehicle code §23222 states that any person found with not more than an ounce of marijuana in their possession, other than concentrated cannabis, will be found in violation. The charge is that of an infraction and the person will be ordered to pay a fine.

However, a person who is found with marijuana in their possession while in a vehicle will most likely also be charged with marijuana possession under the Health and Safety Code. When a person is charged with multiple offenses, the potential consequences may fall within a wider range.

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The amount of drugs found in possession of a person in combination of the type of drug will determine the potential sentencing range and the relevant section of the California Health and Safety Code. Consequently, it will determine whether a person is charged with an infraction, misdemeanor or felony.s

In general, the smaller the quantity of drugs, the increased chances of being charged with an infraction or a misdemeanor. California law prior to January 1, 2011, made possession of less than an ounce of marijuana a misdemeanor, and anything more than an ounce, a felony. A recent change in California law has made possession of marijuana under an ounce, an infraction. An infraction is comparable to a traffic ticket. It involves no jail time, just a fine to be paid. Being charged with an infraction, other than dismissal, is the best possible result. Due to the relatively new nature of the law, it is unclear what amount will constitute a misdemeanor and a felony under California law.

The potential charge for drugs other than marijuana will depend on the type of drug and the state in which a person is being tried. In California, drug possession charges will be a felony, regardless ofsquantity, for serious drugs like heroin and crack.

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