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Asiento asignado por el Registro Nacional de Asociaciones Español: Grupo 1º, Sección 1ª, Numero 600121 - NIF: G76556646 ...

California Drugged Driving

In California, a person is guilty of DUI if he or she is (1) driving under the influence of any alcoholic beverage or drug, OR (2) driving while addicted to a drug. Cal. Veh. Code §§ 23152(a),(c).

(1) Driving under the influence of any alcoholic beverage or drug. Id. § 23152(a).

In California, it is unlawful to drive under the influence of any drug. However, the state must show that the substance impaired the driver, not simply that the driver ingested the drug and then subsequently drove.

NOTE: there is no exception in section for lawful users of medical marijuana.

(2) Driving while you are addicted to a drug. Id. § 23152(c).

This law is based upon the theory that addicts who are experiencing withdraw symptoms are experiencing an altered state of consciousness which makes them unfit to drive. The courts has have provided the following guidelines to determine if a person is an addict. The prosecution's burden is to show;

(1) that the defendant has become 'emotionally dependent' on the drug in the sense that he experiences a compulsive need to continue its use; (2) that he has developed a 'tolerance' to its effects and hence requires larger and more potent doses, and; (3) that he has become 'physically dependent' so as to suffer withdrawal symptoms if he is deprived of his dosage."*

* People v. O'Neil, 62 Cal.2d 748, 754, (1965) -- Habitual use alone is not sufficient to show addiction. The court has outlined the distinction between habitual user and addict in the following terms: The addict constantly takes the drug to avoid the pain of withdrawal illness; the habitual user takes it in anticipation of the euphoria it creates for him. One is compelled by fear to use the drug constantly, while the other is induced to such constant use by the prospect of pleasure."

Implied Consent

  • Any person who drives a motor vehicle on the roads of California is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for either type of DUI. Id. § 23612(a)(1) (A).

  • Failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a DUI, and one year license suspension. If the driver is unconscious or dead, consent is assumed and the tests may be administered. Id.

  • The driver can choose between either a blood or urine test. However, the driver does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law. Id. § 23612 (a)(2)(C).

Penalties

  • First offense – a period of 96 hours to 6 months in jail; fine of $390 to $1000; license suspension of 6 months; offender must complete a DUI program. Id. § 23536(a)-(d).

  • Second offense (w/i 10 years) - a period of 90 days to 1 year in jail; fine of $390 to $1000; license suspension for 2 years; offender must complete a DUIU program. Id. §§ 23540 (a)-(c).

  • Third offense (w/i 10 years) - a period of 120 days to 1 year in jail; fine of $390 to $1000; license suspension 3 years; ignition interlock device required; offender must complete DUI program. Id. §§ 23546(a)-(b).

  • Fourth and subsequent offense (w/i 10 years) - imprisonment for a period of 180 days to 1 year; fine of $390 to $1000; license suspension 4 years; ignition interlock device required; offender must complete DUI program. Id. §§ 23550 (a)-(b).

Other Penalties & Penalty Enhancer

  • If the driver causes bodily injury to a person while driving under the influence and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle the imposed penalty will be enhanced. Id. § 23153 (a) (1992).

Sobriety Checkpoints

In California, sobriety checkpoints have been upheld under both the state and federal Constitutions.

  • Protocol of sobriety checkpoint stops is to be determined not by standard of criminal investigative stops, but instead by standard applicable to investigative detentions and inspections conducted as part of regulatory scheme in furtherance of administrative purpose. Ingersoll v. Palmer, 743 P.2d 1299 (Cal. 1987).

  • California Supreme Court held that advance publicity is not necessary for a checkpoint to be valid. People v. Banks, 863 P.2d 769 (1993).

Case Law

People v. O'Neil, 62 Cal.2d 748 (1965) -- Prosecution has the burden to show the defendant had developed an emotional or physical dependence based on the repeated use of a drug and that defendant required larger and larger doses to obtain the desired 'high.'

California v. De Leon, 2004 Cal. App. Unpub. LEXIS 11549 – It is possible with the assistance of an expert witness to show a driver was experiencing both withdrawal and that he was under the influence at the same time.

California Medical Marijuana

SUMMARY: Fifty-six percent of voters approved Proposition 215 on November 5, 1996. The law took effect the following day. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess a "written or oral recommendation" from their physician that he or she "would benefit from medical marijuana." Patients diagnosed with any debilitating illness where the medical use of marijuana has been "deemed appropriate and has been recommended by a physician" are afforded legal protection under this act. Conditions typically covered by the law include but are not limited to: arthritis; cachexia; cancer; chronic pain; HIV or AIDS; epilepsy; migraine; and multiple sclerosis. No set limits regarding the amount of marijuana patients may possess and/or cultivate were provided by this act, though the California Legislature adopted guidelines in 2003.

The medical use provisions in California do not include reciprocity provisions protecting visitors from other medical use states.

AMENDMENTS: Yes. Senate Bill 420, which was signed into law in October 2003 and took effect on January 1, 2004, imposes statewide guidelines outlining how much medicinal marijuana patients may grow and possess. Under the guidelines, qualified patients and/or their primary caregivers may possess no more than eight ounces of dried marijuana and/or six mature (or 12 immature) marijuana plants. However, S.B. 420 allows patients to possess larger amounts of marijuana when such quantities are recommended by a physician. The legislation also allows counties and municipalities to approve and/or maintain local ordinances permitting patients to possess larger quantities of medicinal pot than allowed under the new state guidelines.

Senate Bill 420 also mandates the California Department of State Health Services to establish a voluntary medicinal marijuana patient registry, and issue identification cards to qualified patients. To date, however, no such registry has been established.

Senate Bill 420 also grants implied legal protection to the state's medicinal marijuana dispensaries, stating, "Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients ... who associate within the state of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions."

MEDICAL MARIJUANA STATUTES: California Compassionate Use Act 1996, Cal. Health & Saf. Code, § 11362.5 (1996) (codifying voter initiative Prop. 215).

Cal. Health & Saf. Code, §§ 11362.7 - 11362.83 (2003) (codifying SB 420).

CAREGIVERS: Yes. Primary caregiver is the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person. The caregiver must be 18 years of age or older (unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card). Cal. Health & Saf. Code, §11362.7 (2003).

CONTACT INFORMATION: For more information on California’s medical marijuana law, please contact:

California NORML
2215-R Market Street #278
San Francisco, CA 94144
(415) 563-5858
http://www.canorml.org/

For detailed information on county or municipal medical marijuana
guidelines, please visit: http://www.canorml.org/prop/local215policies.html

For a list of California doctors who recommend medical cannabis, please
visit: www.canorml.org/prop/215physicians.html

For a list of California medical cannabis providers, please visit:
www.canorml.org/prop/cbclist.html

http://www.canorml.org/prop/local215policies.html

California Penalties

Possession

 

Incarceration

Fine

28.5 g or less

infraction

none

$100

More than 28.5 g

misdemeanor

6 months

$500

28.5 g or less on school grounds by a minor while school is in session

misdemeanor

10 days

$250

More than 28.5 g on school grounds while school open

misdemeanor

6 months

$500

Cultivation

Any amount (exception for patients or caregivers)

felony

16 - 36 months

none

Sale

Gift of less than 28.5 g

misdemeanor

none

$100

Any amount

felony

2 - 4 years

none

Any amount to a minor over 14 years old

felony

3 - 5 years

none

Any amount to a minor under 14 years old (includes offering, inducing, distributing, or employing)

felony

3 - 7 years

none

Miscellaneous (paraphernalia, license suspensions, drug tax stamps, etc...)

Any conviction of minor under 21 causes driver's license suspension for 1 year.

 

Details

Possession of 28.5 grams or less of marijuana is now a civil infraction; no longer an arrestable offense. The offender is subject to a civil fine of $100. Possession of greater than 28.5 grams is punishable by up to six months in jail and a fine of up to $500.

Possession of 28.5 grams or less of marijuana on school grounds when the school is in session is punishable by up to 10 days in jail and a $250 fine. Possession of greater than 28.5 grams or more of marijuana in a school zone is punishable by up to six months in jail and a fine of up to $500.

The cultivation or processing of any amount of marijuana is punishable by up to sixteen months in state prison. There is an exception to the cultivation prohibition for patients or patients' caregivers who possess or cultivate for personal use by the patient upon approval of a physician.

The laws regarding possession and cultivation of marijuana do not apply to patients or patients' primary caregivers who possess or cultivate marijuana for the personal medical use of the patient, upon the recommendation or approval of a physician.

Selling marijuana in any amount is punishable by 2 - 4 years in the state prison. Giving away less than 28.5 grams is a misdemeanor and is punishable by a fine of up to $100.

Sale of marijuana to a minor is punishable by 3 - 5 years in prison.

For anyone under the age of 21 convicted of any of the above offenses, the state may suspend the offender’s driver’s license for up to one year.

Possession of paraphernalia is a civil fine of $200-$300 for the first offense and goes up to $5,000-$6,000 for a fifth or subsequent violation within a five-year period.

A breakdown of CA county and local medical marijuana guidelines is available here:
 http://www.safeaccessnow.net/countyguidelines.htm.



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