The Law Offices of Justin Kirk Tabayoyon provides comprehensive criminal defense for all state and federal criminal charges.
Marijuana / Cannabis DUI
The Law Offices of Justin Kirk Tabayoyon has successfully defended against allegations of driving under the influence of marijuana/cannabis.
First of all, driving while high on weed is very dangerous. Don't do it. It risks your life and the lives of everyone else on the road. It probably would be much more expensive to hire this office to represent you than it would be to take an Uber or Lyft home nearly every night for the next year. And that doesn't include possible fees, fines, and costs. That said, there is a good chance you may be arrested when you have used marijuana/cannabis at some point prior to driving but were not actually impaired while driving.
In 2016 Marijuana/Cannabis became legal in California, and on January 1, 2018, legal commercial recreational sales began in California. Unlike some other states that have legalized recreational use of marijuana/cannabis, California has not enacted laws limiting the nanograms per milliliter of THC in a driver's blood. Instead, California law enforcement officers rely on deeply flawed old school methods to determine if you are impaired -- their highly unreliable subjective opinion combined with any objective facts they can point out. This is a sure recipe for drivers to be arrested based more on an officer's feelings and/or biases against them than whether the driver is actually impaired.
The reality is there presently is no reliable method for law enforcement officers to accurately determine if you are impaired by marijuana/cannabis, and any method generally accepted in the future based on nanograms of THC per millimeter of blood will necessarily be designed simply to help secure convictions and be as completely arbitrary as the current arbitrary 0.08% blood alcohol limit in California (prior to 1990 the arbitrary limit was set at 0.10%). However, for all types DUIs, there is a reliable method for officers to bamboozle jurors into believing they're the human equivalent of a scientific test, justify arrests, and obtain convictions. It is called the Field Sobriety Test.
Knowing how an officer is going to justify arresting you will help you prevent a conviction for driving under the influence of marijuana/cannabis, but unfortunately it might not prevent you from being arrested in the first place, and in practical reality probably will make it much more likely you will be arrested for non existent but very real crime of contempt of cop -- having what they perceive as a bad attitude and being uncooperative. That said, it's better to be arrested and not convicted than arrested and convicted. Thinking you're going to "cooperate" (which in the mind of most law enforcement officers means waiving your right not to speak to them at all) with an officer and talk your way out of a DUI arrest is downright ignorant and foolish. People routinely try to talk their way out of many types of police encounters and, unsurprisingly, simply tell officers what the officer needs to secure a conviction in court. If you're suspected of driving while impaired by marijuana/cannabis, the worst thing you could tell the officer is the last time you used marijuana/cannabis and admit that you have used marijuana/cannabis. And always remember, it better to say nothing than to lie to a law enforcement officer. You don't have to answer their questions, so there is no reason to lie to them.
Yes, exercising your constitutional rights (which they will deem being uncooperative) is likely to piss off the law enforcement officer and cause them to invent (they'd describe it as articulate) a reason to arrest you, but is probably the wisest thing to do in the long run. When the cops pull you over and try to talk to you (they'll proudly describe this road side conversation in court as an "investigation"), they are not your friend and are not there to help you, no matter how much they pretend if you cooperate (which to them means waive your right not to answer their questions) they will be cool with you and give you a break. Don't be a sucker and fall for it. The cops are not cool. If you to talk to them or take their Field Sobriety Test you're going to give them what they need to help a prosecutor secure a conviction against you in court. You don't get brownie points in court for answering questions you didn't have to answer or performing Field Sobriety Tests that you didn't have to perform.
Field Sobriety Tests (FST)
A Field Sobriety Test (FST) is supposedly an investigative tool used by law enforcement. To hear an officer testify about performing these tests you'd think they were rock solid scientific proof of impairment. In reality, these tests were cooked up by law enforcement to obtain DUI convictions despite being unreliable. The scientific reliability is highly questionable, especially when performed by someone who is utterly biased and has already decided a driver is impaired.
The goal of a police investigation is to obtain evidence to secure a criminal conviction. In practical reality, FSTs are a means law enforcement uses to justify the decision they have already made to arrest you and obtain DUI convictions. You should almost never agree to perform a FST if an officer suspects you of driving under the influence of marijuana/cannabis. Why? Because it's virtually certain the officer has already decided to arrest you and already knows he/she is going to say you failed the test. Will they ever admit that? Hell no. And the jurors and the especially the judge are likely believe the officer when the officer claims the FST was the reason for the arrest, not a means to justify it.
Police are experts at using fear, ignorance, and intimidation to get you to waive your rights and make statements they can use to incriminate you. Literally, that is how they are able to get most people to talk to them. They won't mention to you that you don't have to take their FST, and it will surly seem to the average person ignorant of the law as if there is no choice in the matter. Many people erroneously believe that FSTs are mandatory and that failure to voluntarily submit to a FST will result in a criminal charge or suspension of their driver license. That's not true. Know your rights! You do NOT have to submit to a FST. Never. The implied consent to CHEMICAL TESTING that comes with a California driver license only applies AFTER arrest and does NOT extend to FSTs. After you are arrested for DUI, only then must you submit to CHEMICAL TESTING of your blood, breath, or urine to avoid suspension of your driver license.
If an officer asks you to perform a FST, you should assume you're going to jail for DUI no matter what. You can be almost certain that if you voluntarily agree to to a FST, the arresting officer will claim you somehow failed the test (Can you only hold your foot 6 inches off the ground for 29 seconds instead of 30? Gotcha! You're impaired) and testify to that fact in court. Moreover, there are very valid physical reasons why you may be unable to perform the FSTs to the officer's satisfaction which will cause suspicion of DUI despite not being impaired.
You have the right to refuse to submit to a FST. Technically, a law enforcement officer cannot arrest you for declining to take a FST. However, refusing to submit to a FST likely will result in your immediate arrest because law enforcement will view you as uncooperative. their ego will be deeply offended by your refusal, and they'll make up a reason to arrest you for DUI. While every situation is unique, the Law Offices of Justin Kirk Tabayoyon generally recommends refusing to perform FSTs.
Arrested? Now what?
Well, if you followed my advice above and did not take a FST, it will be much harder for the prosecuting agency to obtain a conviction against you. But, if you're reading this after the fact, it's not hopeless even if you took and "failed" the FSTs. As explained above, FSTs are unreliable. It will still be difficult for the prosecution to prove their case beyond a reasonable doubt if you were driving reasonably well before you were pulled over for some minor technical violation, like having a tail light out or slightly speeding. If you have been arrested for a marijuana/cannabis DUI, contact the Law Offices of Justin Kirk Tabayoyon for a consultation.