Features & Columns

Driving under the influence of Marijuana

The District Attorney's Office says blood tests launched last year can determine if a driver is stoned
cannabis RULES OF THE ROAD: Local law enforcement agencies admit they each have different protocols on how to handle medical marijuana. Wiros via Flickr

If we're really being honest, you're not a better driver when stoned. But goddamn if your tunes don't sound better.

With the proliferation of medical marijuana collectives throughout the South Bay, and medicating becoming a daily routine for some, plenty of folks seem to be unclear if they're clear to drive after picking up and/or lighting up.

The Santa Clara County District Attorney's Office says it receives an average of 7,000 DUI cases each year, with "the great majority" being alcohol-related, according to James Gibbons-Shapiro, supervisor of the misdemeanor team at the DA's office.

How many cases are related to drivers only under the influence of medical marijuana is not a statistic currently tracked. Either way, law enforcement, from police to prosecutors, don't see a difference: If your driving is thought to be impaired by alcohol, prescription pills, cough syrup, pot or any other drug, you'll most likely be arrested and prosecuted.

But the threshold for pot-related DUI, or DUID (Driving Under the Influence of Drugs), has become more precise in Santa Clara County since the beginning of 2011, when the DA's crime lab gained the ability to test THC more precisely and determine if someone was driving under the influence of marijuana.

"Lab tests make a distinction for active THC—from marijuana—in the bloodstream from the last three hours and other THC from a longer period of time," Gibbons-Shapiro says.

While every case is different, the Santa Clara County DA's office takes a more lenient approach to medical marijuana than some in the state. Assuming a driver doesn't cause an accident and is pulled over for a minor traffic violation, like not using a turn signal, Gibbons-Shapiro says it would be unlikely that person would be prosecuted if a blood test shows they haven't smoked in the last three hours.

"If there's no active THC in a person's blood, and they fail to use a blinker, that is likely not to be pursued," he says.

But Jose Garcia, a public information officer with the San Jose Police Department, points out that, similar to alcohol, everyone's body metabolizes substances differently. And the difference in attitudes regarding DUID between police, prosecutors and the Department of Motor Vehicles could vary widely.

Similar to a person suspected of an alcohol-related DUI refusing a breathalyzer and a blood test, law enforcement responding to a DUID will notify the DMV. A DMV administrative proceeding, independent of any criminal outcome, could still result in a suspended license. And while Gibbons-Shapiro says his office doesn't intend to prosecute medical cannabis patients who are in possession and returning home from their collective, driving with marijuana goes against the DMV's vehicle code and could also result in a suspended license and fees.

"The vehicle code is very specific on possessing marijuana in a vehicle," Garcia says. "But if they produce a medical card, the officer will take that into consideration."

Unfortunately, there's no set procedure for how law enforcement officers should conduct themselves when dealing with cannabis-prescribed citizens.

"We may confiscate the marijuana," Garcia says. "It may be a case of letting them keep what they have and letting them go. It's changing on a daily basis—agencies are changing policy, DAs are changing their approach."