By The Festival Lawyer //
Colorado and Washington both recently legalized recreational sales of marijuana. Oregon and several other states say they want to be next. In fact, a few recent polls show that a clear majority of Americans now support legalization.
I’ve been meaning to write about marijuana and DUI laws for a while now. And then last week, Justin Bieber got arrested for a “Marijuana DUI” in Miami.
I know a lot of you probably didn’t hear about Bieber’s arrest because it was of interest only to a small group of legal scholars like me. (Writer’s note: I wish someone would hurry up and invent a sarcasm font)
Although Bieber had a very low blood alcohol, his blood was positive for Xanax and marijuana and it appears they will prosecute him based on those test results.
Here is a link to Bieber’s arrest reports and toxicology results to get you up to speed.
One thing that’s clear from this case is that those Fast and the Furious films would have been super boring if they were filmed in Canada. I mean, seriously Beebs, a Lamborghini and Ferrari racing at speeds of between 25 and 60 MPH?? C’mon, the average AMERICAN driver normally hits speeds of 25 to 60 MPH just backing up to get a parking space closer to the gym.
Anyway, on with the tips:
TIP #1 — Understand the legal standard for “Driving Stoned”
California Vehicle Code Section 23152(a) makes it illegal to operate a motor vehicle under the influence of ANY drug whether legal or illegal. To put it another way, you can be busted for driving while under the influence of Nyquil, or Ambien or prescription pain pills or from any other drug including marijuana.
Right now, there is not a standard THC level (like the .08 standard on alcohol) that tells you what amount of THC in your system makes it illegal to drive. Instead, the legal standard is whether the THC in your system has impaired you to the point you can no longer operate your motor vehicle safely and with “the caution characteristic of a sober person.”
By the way, I know someone is going to be tempted to comment that “Marijuana is not a drug, it comes from nature.” Two things about this:
1. Legally it is a drug.
2. If you ingest a substance and it suddenly makes you think Taco Bell food tastes great that’s definitely a drug.
TIP #2 — Understand why no one really knows what “Stoned Driving” legally means
To understand the above legal standard you kind of have to know a bit about the scientific debate going on as to the point a driver using THC is so impaired that he or she is unable to operate a motor vehicle safely.
I started to summarize this scientific debate for you and then I remembered the old saying:
“A picture is worth a thousand words. But a video of a woman who drives BETTER the more she smokes pot is worth ten times that.”
The point is that the science on marijuana intoxication is murky at best. Frankly, there is a lot of disagreement as to what point you are “too high” to safely drive. Therefore a lot of states are moving to impose an objective THC level that would trigger an automatic DUI.
TIP #3 — Why a “.5 Nanograms” standard might mean some innocent folks get charged with a DUI
In 2012, Washington passed a law that set the threshold for marijuana DUIs at 5 Nanograms of THC per milliliter of blood. California and Colorado have both rejected similar laws but there are continuing efforts to get every state that has legal or medicinal marijuana to impose a “5 Nanograms = DUI” limit.
Anyone who smokes marijuana either medicinally or recreationally should have concerns about how this law may impact them.
Unlike alcohol, THC can stay in your bloodstream for several weeks or even up to a month. Therefore someone might smoke marijuana legally a few days prior to driving, get stopped and be over the “legal THC limit” when tested.
In other words, they might get a DUI for having a certain THC level in their system even though they were cold sober when driving. Responsible marijuana users (i.e. people who smoke but don’t want to drive “stoned”) could potentially be charged with DUI even though the marijuana in their system was not affecting their driving.
So how do you protect yourself?
TIP #4 — Don’t drive with a “Bieber Cocktail”
As I mentioned, court documents show that Bieber’s toxicology report came back with a very low blood alcohol (.01) but positive for marijuana (THC) and Xanax.
It is never a good idea to smoke and then immediately get in a car and drive. And it’s even more dangerous to drive while on a “drug cocktail.”
Studies show that mixing marijuana with alcohol or other drugs radically increase the chances you are impaired and unable to drive safely. As a practical matter, it’s also way more likely that you will be prosecuted when you have a mixture of alcohol and marijuana in your system. As we just said, it’s never a good idea to smoke and then immediately drive. But it’s an exceptionally bad idea to mix different substances before getting behind the wheel. Don’t do it.
TIP #5 — Exercise your right to remain silent
In my very first article “What to do if the police stop you at a music festival” I tried to point out how vital it is to understand and exercise your right to remain silent.
Since then, a recent case (Salinas v. Texas) has made this advice even more important. In that case, the Supreme Court ruled that just remaining silent may not be enough. Instead, the burden is on you to show that you are affirmatively exercising your rights and choosing to remain silent.
In other words, you have to say out loud that you wish to remain silent … which would make an awesome Newspeak poster in Oceania by the way.
As insane as that ruling sounds, you need to say out loud you don’t want to make a statement. I suggest using the phrase, “Officer, I am choosing to remain silent. I want a lawyer.”
Clearly neither Bieber nor any of his entourage has time to read The Festival Lawyer’s column due to Bieber’s very busy egg throwing, shitty drag racing, peeing in janitor’s mop buckets schedule. If he had, Bieber would have known not to confess to cops that he had been “smoking in the studio all night” when he was asked why he smelled like pot.
TIP #6 — Don’t take the marijuana swab test
The Los Angeles Police Department recently got a grant to begin using a new type of “mouth swab” that will test for the presence of seven drugs including THC. You should expect other police agencies to start giving these roadside tests.
Remember that if you are arrested the only chemical test you must give is the final one given at the station or jail. If you don’t take that chemical test, you will face an immediate, no exceptions, one-year suspension of your driver’s license.
All other “Field Sobriety Exercises” and preliminary screening devices like the PAS (an alcohol screening device used at the scene) or “marijuana mouth swabs” are completely consensual. In other words, you are not required by law to take any of these tests. Don’t agree to take any of them.
TIP #7 — Don’t smoke in your car unless you want it searched
Not to put a damper on your hot box party, but there is a case out there called People v. Hua (2008) 158 Cal. App. 4th 1027 which says that cops can search your car based solely on smelling the odor of marijuana coming from it.
In a state where there is legal or medicinal marijuana your attorney may be able to argue that this case does not apply. But honestly, why put yourself in that situation? You are making every cop at least tempted to search your car and see what else you have in the car. Avoid smoking in your car. (I see you, guy using a vape pen at the stoplight. Not cool.)
TIP #8 — Don’t let your car become a “Rolling Probable Cause”
I’ve talked before about “rolling probable cause.” This is the slang term cops and DAs use for the fact that a minor vehicle code violation gives an officer the legal right to stop a car and investigate the occupants.
You should pay particular attention to this issue. Don’t attract attention to your car. Keep your car in good running order with current registration and all your lights and brake lamps in good working order.
When driving, keep your driver’s license, insurance and car registration handy and in an easily accessible location. Many officers will write in their report that you “fumbled for your wallet” or “appeared confused about what documents you had” in an effort to prove you were impaired.
Also, keep your medical marijuana card current and in a secure location for those who live in a medical marijuana state.
TIP #9 — Don’t consent to a search of your car
One of the things cops love to do during a traffic stop is to ask if you will agree to let them search your car. If you hesitate they will often go with the old, “If you don’t have anything to hide why don’t you let us search?” approach.
Cops also like to do this thing where they name some crazy thing they couldn’t possibly find and that is the only reason they want to search. “C’mon, just need to make sure you don’t have any grenade launchers or anthrax here … har har.”
You might be tempted to respond with a “I ain’t passed the bar, but I know a little bit … enough that you won’t illegally search my shit” response.
But really, there is only one acceptable answer to what to do if the police ask you for consent to search your car.
“Officer, I am not giving you consent to search myself or my vehicle.”
TIP #10 — Stay calm and don’t argue with the cops
If you read the part of Bieber’s report as to why the cuffs go on, it’s actually kind of interesting. Bieber continually asks, “Why the fuck are you doing this?” and “What the fuck did I do? Why did you stop me?” In fact, the cops first put the cuffs on because Bieber refuses to keep his hands on the car and generally refuses to cooperate in the case.
Remember The Festival Lawyer way. Stay calm, polite and respectful. Don’t give the officer attitude. At the same time, firmly assert your CONSTITUTIONAL rights. These include your right to remain silent and your right to refuse a search of your vehicle. Know your rights and politely (yet firmly) assert them.