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Prop 64 Raises Questions over Handling of Marijuana Use and DUI in California

Marijuana

This November, Proposition 64 (The Adult Use of Marijuana Act) was approved by California Voters (57% favored vs. 43% disfavored).  Essentially, this proposition was for the legalization of recreational marijuana for persons aged 21 years or older and established certain sales and cultivation taxes.

One of the stated purposes of this Proposition is to “tax the growth and sale of marijuana in a way that drives out the illicit market for marijuana and discourages use by minors, and abuse by adults.”  I think this is a laudable goal.  It is my sincere hope that legalization of marijuana will strike a blow to the drug trade similar to the blow dealt to bootleggers by the 21st Amendment to the Constitution (repeal of prohibition).

Though the text of the proposition is approximately 61 pages, it is quite vague in certain parts and leaves a lot of unanswered questions for those in the legal field.

In my line of work as a personal injury lawyer in Riverside, questions remain as to how this proposition and legal marijuana use will impact our profession.

Proposition 64 deals with consumption of marijuana and driving as follows:
Section 3, part “p” – Maintain existing laws making it unlawful to operate a car or other vehicle used for transportation while impaired by marijuana.

The key terms here are “impaired by marijuana.”  What does this mean?  When dealing with alcohol, the law has very specific definitions for impairment.  If one’s blood alcohol is .08% or greater, they are deemed to be under the influence pursuant to Vehicle Code Section 23152(b).  This is an objective amount which can be scientifically measured.  The Vehicle Code also has a “catch all” under 23152(a) which more subjectively states that it is unlawful for a person who is “under the influence” of alcohol to operate a vehicle.  This enables a finding that someone is driving under the influence (DUI) even if their blood alcohol is under the .08% threshold.  This is typically measured subjectively.

With marijuana, we don’t have an objective test to determine if one is “impaired by marijuana.”  Indeed, due to the nature of how marijuana is metabolized and how long it remains in one’s system (unlike alcohol, it remains in one’s system for days as compared to hours), it may be difficult to devise an objective test similar to what is used for alcohol.

The Proposition adds Section 11362.45 to the Health and Safety Code, which provides for the creation of laws regulating the use of marijuana and driving; however, a comprehensive set of laws and regulations have not yet been enacted.

Fortunately, the writers of Prop 64 seem to have anticipated some of these problems and concerns as Prop 64 creates Section 34019 of the Revenue and Taxation Code which reads, in part:

The Controller shall next disburse the sum of three million dollars ($3 ,000, 000) annually to the Department of the California Highway Patrol beginning fiscal year 2018-2019 until fiscal year 2022-2023 to establish and adopt protocols to determine whether a driver is operating a vehicle while impaired, including impairment by the use of marijuana or marijuana products, and to establish and adopt protocols setting forth best practices to assist law enforcement agencies.
Revenue and Taxation Code Section 34019(C)

This is encouraging but it looks as though it may be some years before a comprehensive set of protocols is implemented.  In the meantime, authorities will have to rely on subjective findings to determine if a driver is under the influence.  As one who represents those injured by motorists (oftentimes involving those injured by drivers whom are under the influence), I prefer to have objective findings of intoxication when making a claim that the offending motorists was driving under the influence.  Objective findings are more precisely measured and much harder to dispute by the defense.
A lot of legislation will have to be created to deal with this recent legalization but, ultimately, the benefits may outweigh the drawbacks if legalization of recreational marijuana serves to curb the illegal drug trade and keep many who would otherwise go to jail for possession/use out of prison.

Article by Jean-Simon Serrano

Mr. Serrano has been admitted to practice before California State and Federal Courts. He was named to the Super Lawyers’ 2012, 2013, 2014, 2015, and 2016 Southern California Rising Stars List, an honor awarded to no more than 2.5% of attorneys in Southern California each year. View Attorney Jean-Simon Serrano's Attorney Bio Here.

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