Defenses To DUI Cases Involving Marijuana

DUI Defense Attorneys

Defenses to Driving Under the Influence Cases Involving Marijuana


DUI cases involving marijuana present problems for prosecutors and correspondingly open up a range of ways to fight these cases. When negotiating a case with a prosecutor, we can present the prosecutor with arguments supporting the facts particular to our client's case as well as any applicable defenses.


In addition to many of the DUI defenses outlined here, marijuana DUI cases provide additional ways to beat the charges.  For example, since there is no objective standard for measuring marijuana impairment like there is alcohol impairment, most defenses in a DUI matter involving marijuana, impairment defenses will include some mixture of the following:


*   Defendant was not impaired at the time of driving; or

*   Defendant was not driving; or

*   Defendant smoked/ingested marijuana after driving.


The "No Impairment" Defense


There are a number of ways a qualified DUI attorney can argue that regardless of the blood test evidence produced by the prosecution, defendant is still not guilty of DUI, including the following:


*   Marijuana does not impair driving; and/or

*   Marijuana did not impair a particular defendant's driving; and/or

*   The marijuana level in a given blood test was not representative of a defendant's marijuana level at the time he or she was driving.


Numerous scientific studies have shown that marijuana does not impair driving or that it impairs driving minimally. Any expert witness or forensic toxicologist who testifies will acknowledge this fact, even the prosecution's expert. However, it is best to have a defense expert explain this in-depth for the jury, since the prosecution's expert will, no doubt, criticize the study.


Despite the scientific studies, many jurors feel that a person should not have any THC in his or her bloodstream and get behind the wheel. That is why it is wise to never rely completely on the "marijuana does not impair" defense.


The prosecution usually tries to prove "impairment" in one of two ways, either through testimony/video of "bad driving" and/or through testimony/video of the defendant's performance on field sobriety tests. The problem with this prosecution argument is that field sobriety tests are scientifically valid tests to measure only the level of alcohol, not THC impairment. Further, "bad driving" can be attributable to many things, from swerving to avoid potholes to the defendant texting and driving.


The "No Driving" Defense


The "no driving" defense is only available under specific circumstances, i.e. when the officer did not directly observe a defendant driving. This happens when the officer walks up to a car that is parked at the side of the road, for example, and finds defendant in the driver's seat, or when the police follow a 911 caller's tip, trace the license plate back to a residence, then knock on the door to arrest defendant. In these two examples, defendant can claim that he/she was not the person driving the car (provided that they have not then incriminated themselves under police questioning).


Smoking or Ingesting Marijuana After Driving


Often used by veteran DUI lawyers with extensive experience handling DUI matters involving marijuana, this defense is similar to the "no driving" defense and is most often available when the police officer did not make the traffic stop on defendant's car. For example, if the officer encounters defendant's vehicle pulled over to the side of the road or freeway, asleep in the driver's seat, the keys in the ignition with the engine running, but with marijuana in the car, defendant may use the defense that he/she smoked the marijuana after the car was already pulled over.


The defense might also make the argument that the marijuana was taken in the form of edible cannabis, and immediately upon feeling the effects, defendant pulled over before his/her driving became impaired. An expert witness can explain to a jury that the THC in the edible will not affect the eater until the edible has made its way into the intestines, which can take hours.


Although the smoking/ingesting after driving defenses only work with a certain set of facts, these defenses can be more effective in a DUI case involving marijuana case than a DUI case involving alcohol case for a few reasons. One key reason is that unlike alcohol, potential jurors generally have limited experience with marijuana toxicology, and are more likely to accept the concepts being presented to them by the defense.


Only a highly seasoned DUI attorney who regularly represents Clients in marijuana-related matters can effectively and successfully present these arguments in court.


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