The Glamorous Grind
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The Glamorous Grind
A Medical Marijuana Card Does Not Make Driving Legal
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A THC blood result can follow you long after the high is gone, and that gap between chemistry and impairment is where marijuana DUI cases get messy fast. We’re back with criminal defense attorneys Lauren and Cole to talk plainly about what actually happens when police suspect cannabis impairment, what California law does and does not say, and why “I bought it legally” is never the same as “I can drive safely.”
We dig into the real mechanics of a cannabis DUI: why there’s no reliable marijuana breathalyzer, how THC breaks down into metabolites that can stay in your system for weeks, and why some states use nanogram limits while others go full zero tolerance. Lauren and Cole explain the Drug Recognition Evaluation (DRE) process, the role of field sobriety tests, and how officer observations can drive an arrest even when the lab science is not a clean answer. We also talk about edibles, delayed onset, tolerance differences between chronic and new users, and how all of that complicates toxicology testimony.
Then the conversation turns serious with the cases that never leave you: DUI fatality files, gross vehicular manslaughter while intoxicated allegations, and situations where minimal THC findings get stacked onto extreme charges. If you want a clearer view of marijuana DUI defense, impairment evidence, and how to protect your rights while making safer choices behind the wheel, this one delivers. Subscribe, share this with a friend who thinks weed and driving is “no big deal,” and leave us a review with your take: should the law focus on impairment only, or on any detectable THC?
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Why Cannabis DUI Is Different
SPEAKER_00You can abuse it and you can let it ruin your life, just like you can with a 12-pack of course life.
SPEAKER_03DUIs are most commonly associated with alcohol, but with the legalization of marijuana, more people are asking, how do we prove DUI for being high?
SPEAKER_04Regardless of if you have a medical marijuana recommendation, whether you're purchasing it legally here in California. Same thing as prescription drugs. It doesn't necessarily mean you are okay to then drive.
SPEAKER_02Criminal defense attorneys Lauren and Cole are back with us to continue our conversation about DUIs, but not the kind you're used to. Thanks for being with us today on the Glamorous Grind. We're looking at the law around DUIs when the influence you're under is marijuana.
SPEAKER_03We're joined again by Lauren and Cole to break down what's actually happening in these cases, what the law says, and what you need to know to make safe choices and protect your rights. Thank you guys for coming back.
SPEAKER_02Thanks for having us. We're super excited to talk on this very interesting topic. I need to say.
SPEAKER_00Very controversial subject.
SPEAKER_02Yes. And I was actually just talking to my friend about this yesterday that, you know, back in the day, especially like in our culture, like in kind of the Soviet culture, marijuana was like a drug. Like if you told someone you smoked marijuana, like a Russian mom, they'd be like, oh my God, narkamanka, which is like a drug out.
SPEAKER_03Yeah, and they wouldn't want you to be associated with that person at all. Yeah. There was no such thing as taking it for relaxation or medical purposes. And when did it become uh acceptable for medical purposes? Do you guys know?
Medical Cards And Federal Reality
SPEAKER_00Yeah, uh in the mid-90s, certain states, it's still prohibited. And federally, it's still illegal. Now, maybe that's going to get relaxed at some point, but states like California, Washington, and Colorado sort of led the charge, and the voters were asked if there could be an exception for purchase of marijuana with a medical recommendation. And this is a topic that we can probably cover today, but there's a lot of confusion when people say I have a prescription for marijuana. No, you don't. That falls under federal law, and you cannot prescribe something that is federally illegal. But what you can do is make a recommendation. And that's what so a lot of the dispensaries that were proliferating in the early 2000s were people that had these medical cards. And what it turned out is that you show up at a doctor giving 50 bucks and say, I have a headache. Oh, okay, well, I'm gonna write you a right. It wasn't very difficult, basically nodding their head saying, you have depression, right? Yes, yes. Oh, yeah, well, you're a clear candidate for this. Anybody who wants to smoke weed is smoking weed. You can abuse it and you can let it ruin your life, just like you can with a 12-pack of course light.
SPEAKER_04And I think the most um confusing thing for people is that regardless of if you have a medical marijuana recommendation, whether you're purchasing it legally here in California, same thing as prescription drugs, it doesn't necessarily mean you are okay to then drive. So there is uh still the issue of impairment. So we have a lot of people who are confused by that and talk about, well, I have my weed card. Aren't I okay? Not necessarily. If it still impairs you for purposes of driving, just like Xanax, just like any other prescription medication, you can still get arrested for DUI.
SPEAKER_00Just like alcohol. I mean, you can legally buy alcohol if you're 21 years old, but it doesn't mean you can take a whole bunch of it in and then drive.
SPEAKER_02Well, interestingly, this came up a lot in the employment context, more so before it was so widely accepted, where people started getting these marijuana cards and then they would come to work high and they would be fired, and they were like, Well, I have a disability, and I'm being discriminated against due to my disability, which I cannot control.
SPEAKER_00And courts very quickly were like, oh California Supreme Court disagreed with that. Yeah, in the employment context.
SPEAKER_03And it comes up on the custody cases too. I've had cases where children uh would go to school and they there would be marijuana, a little bit of it stuck in their sock or somewhere else.
Edibles And Tolerance Horror Stories
SPEAKER_00You know, you have to understand that that usually the largest population of voters in most elections are people that are age 40 and over. Well, when the baby boomers started hitting age 40 and voting all the time, these are people that grew up with all their friends smoking weed and look at him going, my friend smoked weed since high school, and he's not some screw up, he's a CEO of a company now. So clearly all the phobia and the paranoia that was instituted early on in the 50s and 60s about it, you know, you know, turned out to be a lot of bullshit.
SPEAKER_03Did you guys have cases where someone had like one drink and then ate two gummy bears and then they totally lost it and were couldn't remember things? Because that happened to me, okay? My grandma had cancer like a long time ago before she passed away. And somebody suggested that I get her gummy bears because it helps with cancer. So this attorney, one time I I saw him at a party, shows up in my office months later and brings me a bag of gummy bears. And I had no idea, like, why is he bringing me candy? I totally forgot. And then I bring it to grandma, and she's like, No, like I'm not a drug addict, I'm never gonna do this. I'm like, Grandma, look. So I ate one to show her it's okay, so she would try it. But then I had an appointment with my potential intern later that day, and she spoke Russian, and we met for drink downtown. So I had a glass of wine after that, and I still can't forget that day because that was so embarrassing. I had short-term memory. I would start speaking about something, and then I would freeze, and I didn't know what I said and where I left off, and that kept happening. It was so embarrassing.
SPEAKER_00I wouldn't I don't I've had I had a similar experience. I grew up in a culture, you know. I I be prior prior to my law school days, you know, I was a musician, played in bands. So I was around weed all the time, played a lot of blues clubs and with a lot of blues players. It was just it was never, you were never like just let's just sit at the couch and you know, watch Dude Wears My Car 50 times. It was just you just had a little bit as you played or whatever, right? And then somebody gave me an edible. And that was the highest I had ever been. And I was like, please God, make it stop. And it lasted for like eight hours.
SPEAKER_01Oh wow.
SPEAKER_00And I remember thinking, I will never ever do that again. And I have friends to this day that say, Oh, I take a gummy every night before I go to bed. I'm like, fuck off.
SPEAKER_02There's now this whole trend, and it a lot of it is like moms kind of driving it. And they make these like um THC drinks that are similar to the glass of wine because it has very minimal tetrahydrocannabol, it's the active part of weed.
SPEAKER_00It's what makes you high.
SPEAKER_02But it it's it combines THC with CBD so that it just really it gives you.
SPEAKER_00What's C B D the part of the cannabis that people use for analgesic, like for pain meds gets you high the C BD dollar?
SPEAKER_02Correct. Wouldn't you get addicted though if you make it a habit?
SPEAKER_00Well, same with anything.
THC Tests, Metabolites, And No Bright Line
SPEAKER_02Well, let me ask you this because for alcohol, you you you can be tested if you're behind the wheel under the influence. They can do a breathalyzer and see how much you've had to drink. What's the test for marijuana? And is there a limit in what you can take and get behind the wheel?
SPEAKER_00It's a great question. And it's one that all of the states in the United States are grappling with right now. So we have a handful of states, Washington, Colorado, a few others, that have a legal limit. And it's a legal limit based on nanograms of THC or nanograms of cannabis. Here's the problem. When you ingest cannabis, it immediately immediately starts breaking down in your system. You have the pharmacologically active component, which is called the delta-9, and then you have metabolites, which means you start off high with very few metabolites, but as the high diminishes, the metabolites go up. And pretty soon you're not high anymore, but you have metabolites in your system. The problem is the metabolites can stay in your system in some cases up to a month, but at least a few weeks. Some states, Arizona and others, I think there's 12 states that say any amount of THC or its metabolites in your system is illegal if you're driving. That means you could smoke a joint today, get pulled over a week from now, and you still have those metabolites in your system, you've broken the law. That's crazy. It is. It is because that's a way of combating. Oh, yeah, you want to make this stuff legal? Great. Well, we're gonna make it so you can't drive for a week after you've smoked.
SPEAKER_03Okay, I can always smell people smoking marijuana because they have a strong nose. Sure. But how soon does the smell wear off? And can they do breathalyzer on marijuana? A lot of child take gummies. What happened?
SPEAKER_00San Diego Police actually tried this. Um they had a machine that they would do a cheek swab of you. But all that's going to tell them is whether you're positive for THC andor its metabolites. So again, if you smoked the day before, I used to tell this to clients look, if you smoked yesterday and you got tested the very next day, you weren't high for 12 hours. If you were, please tell me where you got that weed. Because I'm gonna I'm gonna invest in that company. But what happens is you are gonna have this positive metabolite, and uh, that's all they can tell. And they've abandoned it since then. All it would do is say, okay, that's enough for us now to take you down to the police station and either draw your blood or have you give us a urine test. You're gonna get arrested, you're gonna spend the night in jail, and then maybe a month later when they release your results, oh, he didn't have anything active in his system. California does not have any sort of a legal limit. Some states do. Two nanograms to five nanograms is the typical number. But again, that doesn't have to be, and this is why this is such a complex area of the law, because it's not pharmacologically active specific, meaning you have weed in your system. Well, no shit, Sherlock, but that was from two days ago. I'm not high, I'm not impaired for purposes of driving. Some states say doesn't matter, that's still a DUI.
SPEAKER_03What kind of expert would you hire to talk about this?
SPEAKER_00Toxicology.
SPEAKER_04Are these cases actually prosecuted?
SPEAKER_00They are. Wow.
SPEAKER_04They're kind of some of the hardest ones because whereas alcohol, we have a 0.08 limit. So you know someone at the limit, under the limit, is there a scientific argument that you can make that they were still absorbing alcohol? Whereas weed and the way it impacts people and how long it stays in your system if you're a chronic user versus a new user and things like that. There is uh it's a little bit more of the Wild West in that way. And so you are almost fighting against something that's not there to say, how can we show that this person is not impaired? And they're arguing that they are impaired. So we look at, we could mention this last time, those divided attention tests that they give you. Hey, hand me your license and registration while I ask you some questions. So there's certain things that are going to be specific to what we call CNS depressants or stimulants or the type of drug that they're testing. So they start to look at that, but a lot of this is objective based on what the officer thinks he sees.
SPEAKER_02And that's that was my question. So if an officer just doesn't like someone, they can take them in and test them for marijuana. And if they had smoked a week before, it'll show up in their system.
SPEAKER_00It'll show up. But that case probably wouldn't get prosecuted, but you would get arrested. You probably wouldn't get because when the blood results come out, a prosecutor is going to look at that and say, okay, yeah, he's got it in his system, but he's not high. And that's the that's the factor is were you high while you were paying.
SPEAKER_02But you've already paid bill, you've already been arrested. You can tell by the blood results then like how long.
Roadside DRE And Officer Judgment
SPEAKER_03Okay. There are a couple occasions where I've seen like people swerve on the highway with their windows down, appeared they were smoking marijuana. But what if you're a police officer and you're following somebody who's swerving and um you probably have a body cam, right? They all do to record it. So you'll have that evidence against the person who's driving under influence. And then there's no test you give them because the breathalyzer is not going to show anything for alcohol if it's marijuana. What happens then?
SPEAKER_00Okay, the first thing they're gonna do is they're always gonna check their eyes first. You'll see this, you know, then what they call the nystagmus test, whether it's called a DRE, drug recognition evaluation. And they're they're they're just checking your eyes because that's something that you can't control. What Lauren was saying is really it it's really important. With alcohol, there is a scientific consensus, whether we agree with it or not, it's a different story, that most people are impaired for purposes of driving at that.08 level. Problem is with marijuana, what Lauren just said is right. If you're a lifetime smoker and you smoke a joint, you're gonna be fine because you have this tolerance. If you're a brand new smoker, you're hired in a kite and you shouldn't be anywhere near a car. You might get hit by a car. That's the difference. So there's no consensus about everybody, the average person in the community is impaired at this level.
SPEAKER_03Isn't there also the same thing for alcohol? Some people get impaired after a few drinks versus more. So how does that be a good idea?
SPEAKER_00But there's a much more agreed-upon scientific consensus such that they'll set a legal limit, and all states have that legal limit. To this day, cannabis is still federally illegal. And so when you're a university, where do most studies come from? Universities. The University of Such and Such Medical School did a study on this, Johns Hopkins, Harvard, Yale, whatever. But when you have a federally illegal substance, those studies aren't getting funded. Now they are. University of Arizona was doing some for a while, but they got shut down.
SPEAKER_03I heard on the news the other day that they're changing the category for marijuana to a lower level from C1 to C3.
SPEAKER_00Right. So that they can do more research on the subject.
SPEAKER_03Before it was in the same uh category as heroin, and those two don't compare. That makes no sense, even.
SPEAKER_04Even if even meth was categorized differently because let's say if a person has like cerebral palsy or something like that, they're actually prescribed something like meth to start stimulating all of their different. I don't know that that was. So we've actually had a meth DUI and it was a validly prescribed, you know, meth amphetamine.
SPEAKER_00It's uh it's it's not the kind of guy, you know, if you watch an episode of cops, it always breaking different. It's always a guy with no shirt and a trailer and no shoes, and he's either 300 pounds overweight or 300 pounds underweight. One of the two. And he that's the guy making your meth. That's the guy exact who knows exactly how much Pseudafed you can get for a catalytic converter.
SPEAKER_02That's what I was gonna say. Isn't Pseudafed has supposedly have meth in it?
SPEAKER_00Yeah, that's what it is. That's why you have to show ID when you buy Pseudafed.
SPEAKER_03Why do they even need to get prescribed medicine over the counter to make this? Can't look, they make illegal drugs all the time and smuggle it. Couldn't they just make a different compound, a chemical one?
SPEAKER_00Well you have to understand who their market is. They want to sell this, they want to make it as cheaply as possible and sell it as cheaply as possible so you can sell more of it.
SPEAKER_04But we've actually seen, I don't know if you guys have heard of K2 or spice. It was a synthetic marijuana. It was actually killing people. I mean, it was because trying to figure out these different components in a lab or same thing, yeah. Same thing with uh the mushroom chocolate. You can go and try to find them at a lot of places, but are they trustworthy? Do you know what's in them? Are they just mushroom chocolate?
SPEAKER_00Chocolate that I has psilocybin in it. This is where the whole driving thing comes in because again, it becomes a difficult one, it's difficult for a prosecutor to prove when you don't have a set legal limit. But it's also difficult for us as defense attorneys. I mean, imagine the optics of this. You get arrested for a weed DUI, and I have to come in and tell the jury, oh, my client smokes every day of the week. Well, all of a sudden, many people on the jury think you're a drug addict. Like, but uh what I'm trying to emphasize is my client is going to be highly, highly tolerant, and that level that he's tested at is nothing to him or her, right? But I have to put then in front of a jury that my client smokes weed every day, and all of a sudden they have this vision of, again, you know, Matthew McConaughey, all right, all right, all right, that kind of shit, you know, and that those are the optics. And you have to, when you're picking a jury, you know what your drug is and know look what demographic you're looking for. And you know, on a weed DUI, I always want younger jurors because they're more receptive to look, people smoke all the time. I mean, it's not a big deal. Where if I get a more senior population, they were still it was still drilled into their heads from you know the 60s and 70s that weed is the antichrist and anybody who uses it's going to become Charles Manson.
SPEAKER_04I think the hard thing to understand is it's not just smoking weed, right? Or it's not just drinking alcohol, it's the impairment. Right. So just like you can have a beer and drive, perhaps you can have some marijuana and drive if you're not impaired. So it all comes down to impairment. Right. And that's why alcohol is easier because we have made statutorily and all you know, all of the scientific research that we can, you know, present in court that has been peer-reviewed and tested is all for alcohol, and there's so much less for um anything. And even prescription drugs, we have you know experts who will testify and say, well, again, with this person, it would impact them differently. Um, so it's it's difficult. The we DYs are difficult.
SPEAKER_02Based on your knowledge, do officers get specific training on how to look for impairment by marijuana? Well, it depends on the officer.
SPEAKER_00They're supposed to.
SPEAKER_02Do they look for this in every single person they pull over?
Fatality DUIs And Life Changing Consequences
SPEAKER_00We're trying to find out what happened. And so if especially if there's a wreck, you know, if there's an accident, why did this accident happen? Is it just somebody was texting? Were they on their phone? Were they distracted? Were they eating, or were they high, or were they under the influence of alcohol? Or was it a combination of both? Like one of the most common scenarios that we get is somebody gets pulled over, they give them a breath test right at the scene, and they blow negligible.02, 0.03, clearly not under the influence of anything. Just a little bit of alcohol, but they say, But you look super fucked up. What's going on here? And that's when they say, I have reason to believe that you're also under the influence of something else. And now you have to do a blood or a urine test. And they they will do that. But that's for their I mean, the the mission is obviously protection of the public, but the stated mission is the protection of the public. But really, it's we need to find out what's wrong with the person. We have lots of cases like that where we get the blood alcohol results and we're like, wow, look, they're way under the limit. Yay! And then a couple weeks later we get a toxicology result, like, oh shit, this guy's on this and this and this and this, a whole cocktail of them. And that's really one of the things the statute in California is driving under the influence of alcohol, drugs, or the combined influence thereof. We'll have people that'll call the office sometimes and I'll speak with them and they'll say, Yeah, I tested out, but I was only a.03. I'm like, oh but they still arrested you. Yeah. Did you do a blood test? Yes. Are they gonna find anything else? Uh, well, yeah, I mean, you know, I took uh we just had we just were retained by a case this weekend. Uh well, I take Xanax. I'm like, okay. When did you take it? Well, I like before I drove but a long time. Like, how much time? And there's almost this hesitancy to just own it and say, yeah, I took it, you know, last night before I went to bed, and I got up at four in the morning and decided I needed a taco or something. I drove out and gotten to a wreck. And that's what happens in a lot of these cases. And now they've got that in their system.
SPEAKER_02So is there a case that still sticks with you?
SPEAKER_00I think the hardest cases for us are always the fatality cases. A lot of our colleagues do criminal defense where there is gangs involved and murders, where many times the perpetrator is a bad citizen, and so is the victim as a bad citizen. You know, like I I again gang violence, drug dealing, shit like that comes to mind. Many times when you have DUI fatality cases, the driver, the drunk driver, could be any one of us. Person that's worked hard, played by the rules, they just screwed up. And I tell this to a lot of my clients, you know, be thankful in some cases that you got pulled over because you could have killed somebody, and then you're you you and I are having a very different conversation about what the rest of your life is gonna look like.
SPEAKER_04And maybe not, you know, everyone might say, No, that would never be me. But people can get DEYs the next morning. They think they're fine. We have one right now, and it's not the first case we've had where she spent the night at a friend's after drinking all night, wanted to be responsible, went there the next morning to pick up her car, you know, 6 or 7 a.m., still has a registerable blood alcohol level and is being prosecuted for DEY. I think that's what the scariest thing for us is is when you see cases like that. I remember one of my first fatalities with Cole was um a military veteran. Amazing, amazing qualifications. Anyone who knew her. Colonel. Colonel, nothing but amazing things to say. Every medication that was on board in her system was something that was prescribed by the VA.
SPEAKER_00Um but she had PTSD from her combat, all that stuff.
SPEAKER_04But she went through a red light and you know, broadsided another car and killed an older man and for the UTC. Yeah. And and something like that, seeing the outcome for her, the outcome for that family when when f in her opinion, she honestly thought, I didn't this is my normal medication routine. She didn't feel oh under the influence. She is going about her normal daily routine, going to the VA for another medical appointment and just seeing how quickly things can change and how all of us go, it could never be me. Well, you don't, you don't actually know that. You it the how quickly life changes is is really concerning in a lot of these cases.
SPEAKER_00And I I can't think of any of our cases that we've had involving fatalities where our client was a bad citizen. That's almost always their first offense. And many times, you know, you you wonder had you been pulled over last year or something, you probably because most people don't re-offend. Some do, but most don't. And it I guess in some senses the system works uh because that's what everybody's hoping for. Okay, you didn't hurt anybody, you didn't kill anybody, you didn't hurt yourself. Um don't do it again. But we get those cases where it was your unlucky day, and that's the day that the guy on the motorcycle was in front of you and you hit him in uh had that been a car, he would have walked away with maybe a scratch, but he's dead now. And we have to deal with that. And so all of those cases stick with us because you genuinely, you know, you you always have a victim. Not always, but usually you have a victim. That's all. Also, a really good person, and you have a client that's a really good person, and that the judges will tell you that these are the hardest cases to sentence. We had a case, and this one you talk about, one that still sticks with me. Um, many years ago, happened up in Oceanside at the um by the oceanside pier, and there's a a road there that goes down to where all their shops and restaurants are by by the oceanside pier. My client had been at his son's twin boys' birthday party, nine-year-old birthday party. He had had a couple glasses of wine, not a lot. Coming back, it's very dark, and these people were also drunk. They were crossing the street. My client just didn't see them. They were outside. If you look at like a a street light, there's a cone of light that comes down, and it's very bright. They were just outside that, so they were in the dark. As he's leaving a lighted area, he went through the intersect or went, just went on the road. They were outside of the crosswalk and he struck a woman. And when he called me, she was in the hospital. By the time he came and met with me in my office, she had died. Then, while that keep in mind, this is a father, he's got two little boys facing 10 years in prison. And he was a local business owner, very well-known business owner. His product that he made uh was a was a type of bread. And when they would bake all the excess bread, he and his boys would go to the local food kitchen and donate it and help feed. He was teaching these kids from a yeah, just a really, really model citizen, right? During uh he was convicted because his blood alcohol was over the limit and there wasn't really a whole lot of a defense there. Well, the bad part is while he was awaiting sentencing, his wife was diagnosed with cancer, the mother of the kids. We she came into court with a headband, you know, no hair on her head or anything like that. And it was in front of uh Judge Weber, Joan Weber, who was one of the best, best judges I've ever been in front of, and she said, This is perhaps the most difficult case I've ever had to sentence on. And she granted him probation. He spent, I I believe he spent a year um either in county jail or possibly in work for a little. But I mean, that was a potential, you know, six, eight, or ten years in prison, and he didn't serve any. He he um because he had paid it forward. He had been such a stand-up citizen teaching his boys, plus the fact that his wife, you know, he may lose his wife. Who's gonna be there for these boys? You know? Um yeah, it's a really sad case. And here's the the epilogue to that, which is even beautiful. So the woman that was killed had a uh 16-year-old daughter. There had been all kinds of family drama. And the dad that had raised the girl had was not her biological father, but entered the picture when she was an infant. And so had raised her her whole life. The woman was down here having an affair. So when the dad found out about this, he basically said, Screw you to her and screw you to the daughter. I'm not raising you anymore. So the daughter lost both her mom and the guy who she's known her whole life, said, I want nothing to do with you anymore. So at the end of the trial, the prosecutor, the DA, still a good friend of mine, came over to me and said, My victim's daughter would like to talk to your client. And my first response is, What the fuck for? I mean, I don't want her to yell and scream at my client. I'm like, is it cool? I mean, are we okay with this? He's like, I think so. So we went into a little side room in the Vista courthouse. She came over to my client, broke down crying, hugged him, said, I forgive you, I forgive you, I forgive you. Oh my God, this is so terrible. My client, who was quite wealthy, um, ended up setting up an entire college scholarship for her, paid for her entire college education because she'd been abandoned by both. And I kept in contact with him for many years. And he um she she graduated college. I can't remember where she went, someplace here in Southern California. But he paid for the case.
SPEAKER_03Very sad on good story both.
SPEAKER_00Yeah, it was both, you know, and it was, it was, I mean, we were all even I we went up and told the judge about this, and you could see everybody was emotional about it after it's like, wow. Okay. So yeah, that stuck with us for a long time.
SPEAKER_03Can you tell me about what cases you have right now pending about DUIs related to marijuana? And what evidence do product secutors have against your clients that cause them to pursue the case?
SPEAKER_04Well, so one thing that is uh is a big thing on any, whether it's prescription drugs, marijuana is Cole kind of mentioned when he said testing the eyes, there's something called a drug recognition evaluation. And there's 12 steps, and that includes looking at your eyes, taking your pulse, having you do the filled sobriety tests. So while they don't have the legal limit of saying, like alcohol, you're above a 0.08, we're gonna arrest you. They have them do the 12 steps and then they will make an assessment based on what how they think the person did. So it's a lot more objective based on the officer. Do I think that you did this test correctly as explained or not? It's it's harder to determine.
SPEAKER_00We have a case right now, and obviously the case is pending, so I can't get too deeply into it, but we have a case right now that's a double fatality case, um, where there is no substances on board other than what most experts would consider a minimal amount of cannabis in the system. Um, depending on which, you know, the prosecution's expert's gonna say one thing, the defense expert's gonna say something else about when this person likely ingested the marijuana.
SPEAKER_03And they brought DUI charges on top of wrongful.
SPEAKER_00Yeah, it's being charged as a vehicular homicide, what we call GVMI, gross vehicular manslaughter while intoxicated.
SPEAKER_04We do actually have a murder case at a county where it, I mean, this blows my mind. Um, there's an allegation of wheat on board, um, is a person who was ran out of gas on the freeway. I don't know which freeway that is out there in the middle, nowhere. 10 um was actually approached by a CF CHP officer. That CHP officer conducted field sobriety tests, spent time with them, determined that this person he didn't believe this person was under the influence, instead was undergoing a medical emergency similar to maybe um diabetic shock or something. Correct. Um, that officer drove them back to a little uh kind of shopping mall where they could get gas. They ended up catching a ride back to their car to put gas in their car. As they're pulling out, within 30 seconds, uh, there's an accident and our client's fiance dies. She was a passenger.
SPEAKER_00And he was rear-ended on the freeway. Our career was rear-ended on the freeway. And slowing down to turn off the freeway. And an off-duty law enforcement officer who admitted he was going over the speed limit and looking at his phone ran into them. But they're prosecuting our guy because he has THC and his system.
SPEAKER_04And it's wild to see how he can be with one police officer an hour before this happens, and that officer says, I think that you're okay for purposes of driving. And then an hour later, this happens, and next thing you know, this person is so under the influence they're being charged with murder. Where I mean, what he's facing easily 15 to life in this case. Because he has a blood. Because they thought he was rear ended.
SPEAKER_00Because they thought he was under the influence.
SPEAKER_04Because he was acting. So if you've ever met anyone who is uh suffering from uh some sort of diabetic episode, they can be confused, they can, you know, they almost imitate what people see in terms of uh being under the influence for alcohol.
SPEAKER_00Plus the fact that his fiance is dead next to him in his car. And he's just been rear-ended at 80 miles an hour on the freeway. That might just be fuck with your ability to pay attention a little bit. Well, they they have probable cause. All they need is probable cause.
SPEAKER_02That is crazy.
SPEAKER_00It's crazy, and that's why the case is going to trial.
Listener Question On Proving Timing
SPEAKER_03Well, we have a question from a listener. Let's see what they said. It's from Reddit User in California. Seeing how it's illegal in a lot of states and that THC stays in your system for up to 30 days, do they have anything that can determine if you're currently high? Like, how do they draw the line with alcohol at 0.08? Do they have any measurement for THC? Anything that acts like a breathalyzer, only asking because I got a DUI for THC, two nanograms. It showed up in my blood, and I therefore was charged with a DUI. I didn't smoke that day, but I smoked the night before. Is there any way to prove that? So there are a lot of questions in there.
SPEAKER_00Right. First of all, is there a legal limit? Is there a point where Southern California? No, so in California, there is no legal limit for THC. So it goes back to that same thing. One, they're going to try to do a roadside evaluation of you, and based on their observations, decide whether they think you're under the influence of something. We don't know what. Now maybe somebody admits it. Maybe there's weed in the car. We have one where the girl's car was filled with smoke and there's a there's a bong in her passenger seat. They're gonna they're gonna do an evaluation of you, see how you react. And if you present as someone who is impaired by something, they're gonna take you down and you're gonna give a blood test or a urine test. And then the results of that test, again, there is no legal limit. So we always look at what is the part, like he's talking about the the metabolites of are you do you have the pharmacologically active component in your system at the time that your blood is drawn, the stuff that's making you high? Or do you simply just have the metabolite? Like you said, it stays in your system for up to 30 days. It does. But you're not high for 30 days.
SPEAKER_032.0 nanograms.
SPEAKER_00In some states, two nanograms is their legal limit. And that's two nanograms of any form, metabolite or otherwise, just a collective amount.
SPEAKER_04You would go through, like we talked about those field sobriety tests, those 12 steps to see where you are not. So if you if you know marijuana is, you know, a depressant, then you're going to ex expect certain things to do with your pulse, your pupils, um, you know, your tongue. There's a but there's a million things that they're looking at, right? And so you would go through and have your attorney look at those things to say what doesn't show impairment? What could have a different reason for these same objectives that we're seeing? And you would match it with that. Sometimes people just say, Well, I have I have a high heart rate in general. So you'd be able to say scientifically there are other reasons for this if you're fighting that case, but there's not the test for active THC in that moment.
SPEAKER_03So he says he smoked the night before, and is there a way to prove that? I'm assuming he's gonna have a public defender. What can he expect that public offender to do? Will he hire experts for him?
SPEAKER_00Yeah, yeah. They would they would want to bring in. I mean, if you're gonna put the case in front of a jury, of course, you're gonna want a toxicologist that's gonna come in and say that level of THC either one, somebody smoked a nominal amount within a few hours of driving, or maybe smoked a significant amount, but eight, 10, 12 hours earlier. There, this is why having a legal limit is so difficult with cannabis, because everybody metabolizes THC differently. Alcohol, there are some standards that everybody pretty much metabolizes alcohol the same way. Again, there are exceptions to that, but for the most part, everybody does. But with THC, you have the difference between a veteran smoker and a rookie smoker. They're gonna metabolize it differently, they're going to present differently because of the tolerance level. That's what makes cannabis litigation so difficult. And that's why some of these states said, you know what? Fuck it. We're not gonna even deal with that. If you have any in your system whatsoever, it's a DUI. That's like Arizona's got that right now.
SPEAKER_03Aaron Ross Powell, Jr. With cannabis, it doesn't matter what's your weight. Not as much. It's not as much more whether or not you've been smoking for a long time and are used to it's all of those things.
SPEAKER_00And that that again, with alcohol, we've been able to kind of make some bright lines that say, okay, this is this, this is this. But when you start dealing with cannabis or any other types of drugs, um the difference with like prescription drugs, if you're following your prescription, you know exactly how many milligrams you're taking or nanograms, or and you take it every night at the same time, or whatever the case may be. But with weed, you know, again, when you factor in, you know, we're in California, this is the strongest weed in the world here in California. And if you go to a dispensary, they have anywhere from 5% THC to almost 40% THC. Okay, and then you mix in edibles or people that are vaping, the ingestion methods are also different. Like, for example, with an edible, you might eat that now, and you're sober for the next two hours, then all of a sudden it hits you like a Mac truck. Okay, well, if you test out, did you get tested out in that first two hours where you weren't showing any impairment at all? And then how long does that stay in your system versus the kind that you smoked? This is why it's all over the map right now.
SPEAKER_03Seems like there's so many variations with different types and different brands and where it grows and what percentage uh THC it has. Uh and for studies, like universities are doing studies, I mean, it's gonna take years from test tolerance.
SPEAKER_00States that don't want it legalized, or the states that have where the voters have said we want it, but the legislature has said, uh-uh, they're the ones that impose this zero tolerance. Say, okay. I mean, imagine if they did that with alcohol. I don't care if you drank last night and you're completely sober this morning. If we can detect that you had alcohol in your system, that's a DUI. You can you imagine the outcry there would be and what the food and beverage industry would do, the bar industry, the restaurant industry, the hotel, they'd they'd lose their fucking minds over that. Well, that's what some of these states are doing with cannabis right now. They're saying, yeah, we're not gonna deal with all this minutia about nanograms and milligrams and micrograms. Fuck it, we don't care. What we care about is if you smoke weed, you can't drive for a month. Now, are you still gonna smoke? And it that's that's their position.
SPEAKER_03Interesting. And those other states, it must also really impact custody cases if there's zero tolerance like that relative to California. People are like, huh.
SPEAKER_04But I think, and we talked about this last time too, that certain states are what we call volitional control for DUI. So, you know, you don't even have to be actually driving to get that DUI. You can be sleeping in the backseat of the car. If you're you know, you're you're in control of the vehicle, you can still have it. So it really is kind of the Wild West, especially then when you add it and not having a legal limit between all of these states.
SPEAKER_03What did it take you decades to learn that you're like, oh, I wish I knew this when I was a brand new lawyer, if I only read this, or if I only focused on figuring out what experts I need or you know what questions I should ask to be really good at this?
SPEAKER_00The mistake that I see many young lawyers that want to get into DUI law is they get woefully hung up on the science. You've got a client, let's just say, that gets pulled over for swerving or they hit a parked car. They get out, the cop comes over, gets them out of the car, they fall over and they get out of the car. Vomit on the cop's shoes. Stand up drunkard and fuck, open container in the car. Uh uh-uh. But the blood machine was measuring nanograms that were off by by two microns, and that could mean reasonable doubt. Knock yourself out. Jury, the jury will how they won't even have picked a four-person by the time they found your client guilty. Because you found something in the science. Now, that doesn't mean there's not valid scientific defenses. There are. But they have to make sense, and this is what I tell all the young lawyers when I speak around the country. Your case has to make sense. If your client looks sober and the driving isn't bad, and the interaction with the cop is pleasant, and then you find something in the science that helps you, great. Otherwise, what you have is some your client who's drunk as shit, and you found an anomaly in the science. But a jury of 12 people is like, uh-huh.
SPEAKER_03This is excellent advice. Good perspective.
SPEAKER_00Yeah, right, right. So it's not just the science. You know, we've had everything. I mean, you can imagine the shit we hear when we talk to new clients. Sometimes people say, Well, you know, I heard that when I did my breathalyzer that if I put pennies in my mouth, that would affect the breath machine. So I put a penny in my mouth. I'm like, no, it doesn't affect the breathalyzer, but you may have hepatitis now. You might want to go get yourself checked out, you moron. But we hear stuff like this all the time. Or now the worst is, well, you know, Chat GPT says, and you just are like, oh, but for lawyers that are coming into this field, your defense at a trial has to make sense. It all has to fit together. The science isn't going to save you if your client is still drunk and stupid. But if your client, as I said, appears by all metrics to look pretty good on all this stuff, and maybe they're just nervous, maybe they're this, and you find anomalies in the science, fair enough. That might be a trial case.
SPEAKER_04And I think the biggest thing for the new lawyers to that is really helpful, especially let's say you're you're like us, where you're on your own, you're not at the public defender, where you have a bunch of people to ask questions to, um, joining listservs where you know all the attorneys are joining in and asking questions, you get exposed to a lot of questions, a lot of experiences, issues that people win at trial, you know, in limiting emotions that you're going to file ahead of time. And so if you're looking for experience, that's going to be a place where you learn all the terms, you learn what the big tickets are, what you should watch out for in for in terms of defenses, where you're not practicing on your first client and then they're going to jail because you didn't quite know. But you're starting to see, okay, if I need an expert, these other groups of attorneys, they can kind of point us into, oh, you'd need this specific, like we said, a pharmacologist, or you need a toxicologist, or something like that. You need accident reconstructionists. You have an idea of what where you can take the defense of the case or where your strengths and weaknesses are. So instead of guinea pigging your client, I think it's most responsible to join groups of other attorneys.
SPEAKER_00It's a very big compliment. I get calls or approached in court, and so does Lauren, by young lawyers, excuse me, that say, you know what, I know who you are, I've been following what you do, and I'd love to learn from you. I've got this DUI case. Would you mind? Every good lawyer is going to take that as a compliment and say, absolutely, because you know what? We did that. I had lawyers that I reached out to. We talked about this on the first podcast, where I had to go to Los Angeles to find lawyers that now do what I do because there was nobody here in town that was doing this. And that's where I saw kind of a hole in the marketplace. But now there's a handful of good lawyers here in San Diego that do this kind of stuff. Approach us. Come up to us in court, introduce yourself, give us your card. Hey, are you going to do any motions or any trials? I'd love to call. I'm going to call you and say, hey, you approached me the other day in court. I'm arguing a motion uh, you know, next Thursday if you want to stop by the courthouse. It's a compliment to us, but it's also us helping ra, you know, what they say the rising tide lifts all boats. We want there to be better defense attorneys out there. And if we can help them get there, and some of the better lawyers in town now that do what we do, we've mentored and taught them this stuff, or at least pointed them in the right direction because they reached out. So reach out. Don't try to do it all on your own. Find people that are willing to donate the time to talk to you and explain things to you and sit down with you and go over to offer to take them to lunch. There's a quote that I love.
SPEAKER_02It's the people at the top are not competing, they're collaborating. Correct. And it is, it rings true to every profession, I think, that most people in most professions who are really good at what they do understand that there is room for everyone to be good at it. And from where I stand, the better my colleagues are, the better I will be. And we collaborate in terms of, you know, if we need to have motions that we want to share, or even processes, or if we're find ourselves in niche situations that we've never dealt with before. And then next time the other person may be dealing with it, they may ask me. But same with referrals, you know?
SPEAKER_00So it's all very true. And if you're a younger lawyer coming up, avail yourself of the people in your community that are doing what you want to be doing.
Key Takeaway And How To Reach Us
SPEAKER_02A huge thank you to Lauren and Cole for coming back and continuing this conversation. This is one of those areas where the law is still catching up.
SPEAKER_03And the biggest takeaway here is that legal doesn't mean risk-free, especially when it comes to driving.
SPEAKER_02Hit that subscribe button and make sure to follow us. And if you've got a question for Let's Get Gritty, leave it in the comments or send it to podcast at AntonianMiranda.com. Thanks for listening, and we'll see you the next time on the Glumber's Grindr.
