The Passing Of Proposition 64 In California


As per the Centers for Disease Control and Prevention (CDC), the national average of those admitting to driving while under the influence of alcohol ranks at 1.9 percent. The CDC reports this type of data on a state-by-state basis with California falling slightly below the national level with 1.8 percent of the population admitting to driving while under the influence of alcohol.

Study after study reports heavily on the effects of driving while under the influence of alcohol, but what about those opting to drive while under the influence of cannabis?

Currently, in California, it is illegal to drive while under the influence of any type of mind-altering substance as legislated under the California Vehicle Code 23152(a) but with the passing of Proposition 64, this past November new challenges are now facing California law enforcement.

Proposition 64, better known as the Adult Use of Marijuana Act, permits adult Californians, over the age of 21 years of age, to possess, transport, and purchase up to 28.5 grams of psychotropic drugs for recreational use only.

With the passing of Proposition 64, California law enforcement will need to become creative when it comes to testing drivers who have opted to operate a motor vehicle while under the influence of cannabis, especially since pot can linger in one’s bloodstream for a significant amount of time after the last use.

To date, If suspected of driving while under the influence of pot, California law enforcement may institute the following field sobriety tests:

The Blood, Breath, or Urine Analyst Test

If California law enforcement suspects driving while under the influence of pot or any other substance, probable cause equates with already providing consent to a blood, breath, or urine test to detect any level of tetrahydrocannabinol (THC) at the time of the incident.

The Saliva Swab Test

As the numbers of those driving while under the influence of cannabis may have increased, California law enforcement is now also using drug swabs at DUI checkpoints. This test takes approximately eight minutes and relies on a person’s saliva to detect THC levels or any other type of substance. The only issue with this field sobriety method is that it is difficult to prove beyond a reasonable doubt that the driver was currently under the influence as THC remains within the bloodstream for several days.

The Horizontal Gaze Nystagmus Test

Although deemed only 77 percent reliable by the National Highway Traffic and Safety Administration (NHTSA), this test is often administered by law enforcement by asking the alleged offender to follow a moving object to detect an involuntary movement of one’s eye at a span of 45 degrees to determine usage and impaired driving.

The One Leg Stand Test

Although effective only 65 percent of the time, law enforcement may ask the suspect to raise one foot, hold still, count, and look down. If there is swaying, hopping, or placing the foot on the ground, law enforcement may surmise that driving under the influence is highly evident.

The Walk and Turn Test

The validity of this test is slightly conclusive of the one-leg stand test with a 68 percent efficiency rate. The means of this test require an operator to quickly switch between physical and mental tasks. Often referred to as the “walk the line” test, law enforcement provides specific task suggestions to measure

  • Loss of balance,
  • Failure to follow specific instructions,
  • Inability to stay directly on the line, and
  • Breaks in stride.

As California continues to refine systems for recognizing and testing for driving under the influence of Marijuana, if you or a loved one have recently experienced a DUI checkpoint and doubt the reliability and outcome of a field sobriety test, contact San Jose DUI defense attorney Nick Cvietkovich today at (408) 898-9770.


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