There is a great deal of confusion surrounding the bill signed by Gov. Schwarzenegger, SB 1449,which decriminalizes simple possession of less than an ounce of marijuana for persons 21 years of age and older. The law, although signed by Gov. Schwarzenegger, does not go into effect until January 1, 2011.
First of all, the new law, while decriminalizing simple possession, does not make it legal, just as it does not make DUI marijuana legal. That’s right. Simple possession of marijuana will not be a crime, but it will be illegal. How is that possible? Right now, simple possession of marijuana is made illegal under California health and safety code section 11357. The possession of less than an ounce of marijuana is classified as a misdemeanor. So it is illegal and it is also a crime. Speeding in a car is also punishable by a fine, but it is not defined as a misdemeanor. Therefore, speeding is illegal, but not a crime. It doesn’t exactly make sense that simple possession of marijuana is categorized as a misdemeanor, because misdemeanors are generally defined as crimes that are punishable by no more than one year in jail, and not punishable by time in prison. So, for most other misdemeanors, there would be a huge difference in saying that they were an infraction as opposed to a misdemeanor because it would mean that they were not punishable by jail time. But, because simple possession is already punishable only by a fine, the fact that it’s now going to be an infraction doesn’t make a difference in the punishment.
However, because simple possession will be an infraction rather than a misdemeanor, any person suspected by an officer of simple possession will simply receive a written citation, rather than being arrested. The other difference is that upon a conviction of a misdemeanor a person would likely be required to disclose that in job applications and applications for college or graduate school. But jobs and colleges generally do not require a person to disclose convictions of an infraction. The bill signed by Gov. Schwarzenegger does not categorically make possession of marijuana legal. You still will not be able to smoke in a public place or possess it within certain distances of a school.
To add to the confusion, proposition 19, the “marijuana legalization initiative,” is a ballot proposition that will be passed on by California voters at the November 2, 2010 election. If proposition 19 is passed, simple possession of marijuana will actually be legal for persons 21 years of age and older. Therefore, proposition 19 goes further than SB 1449 because it makes simple possession of marijuana legal, and not an infraction.
But, like SB 1449, proposition 19 does not make it legal to sell marijuana, smoke marijuana in public, or possess it on or near school grounds.
What does this all mean for driving under the influence after smoking marijuana? California vehicle code section 23152 (a), also known as DUI, makes it illegal to drive while under the influence of alcohol, drugs or the combined influence of alcohol and drugs. Neither SB 1449 nor ballot proposition 19 will affect the lawfulness of DUI marijuana. That makes sense because, even though alcohol is legal to use and possess, it is illegal to drive while under the influence of alcohol. What about vehicle code section 23103 per 23103.5, known as a “wet reckless”? A conviction for wet reckless means that a person drove recklessly after consuming alcohol or drugs. Therefore, if a person is suspected to have been DUI marijuana then prosecutors will sometimes offer a wet reckless if their case is somewhat weak. SB 1449 and ballot proposition 19 will not affect the operation of the laws relating to a conviction for wet reckless because even if it is legal to possess and use marijuana, that does not mean it is legal to drive recklessly after consuming marijuana.
There are really two ways to be convicted of DUI. One of them is vehicle code section 23152 (a), as discussed above. The other one is vehicle code section 23152 (b), which is driving with a blood-alcohol level of .08% or greater. It will be interesting to see whether the legislature sets a particular standard for the concentration of THC in the blood and makes it “per se” it legal to drive with that concentration of THC in the blood. It will probably be some time before that happens because right now, with marijuana coming from many different sources, there really is not a standardized amount of THCin any particular batch, and the THC in marijuana has a chemical composition that can vary from batch to batch. If the sale of marijuana is one day legalized thenpharmaceutical companies will produce it in standard forms. Studies will be conducted in order to determine what level of THC in the blood allows someone to drive safely. And standards will be set for a per se DUI marijuana that will operate in a very similar to the per se laws related to alcohol. Until that day, be safe and take a taxi when you drink or use marijuana. It is a lot cheaper than the alternative. Click here to visit our San Diego DUI Attorney page.