It’s Not Called Marijuana Anymore

SB 94 [Approved by Governor June 27, 2017. Filed with Secretary of State June 27, 2017] also known as the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), establishes a single set of guidelines for adult recreational and medical cannabis use.

The bill affects numerous sections of the Business and Professions, Fish and Game, Food and Agricultural, Health and Safety, Revenue and Taxation, and Water Codes. (New Laws for 2018, Garrick Byers Statute Decoder)[1]

Not to be forgotten is its impact on motor safety laws under the Vehicle Code. Among the many provisions of this bill, there is a $3 million funding appropriation for the California Highway Patrol to train state and local law enforcement officers in drug recognition and impairment. This will likely try to address the many obstacles law enforcement and prosecutors have faced with prosecuting marijuana DUIs. Unlike with alcohol, there is no measurable, definitive level at which a person is deemed to be “under the influence” of cannabis products for DUI arrests. Essentially, an officer can make a discretionary judgment call of how high you might be when determining whether or not to make an arrest. Without consistent and clearly defined standards, protocols, or practices, establishing that a person was driving “under the influence of marijuana” presents a whole host of evidentiary issues at trial.

Without a scientific basis for determining what specific level of cannabis consumption impairs a person for purposes of driving, and an explicit law dictating what that quantitative level is, how can one prove in a court of law that a person violated a DUI law? Law enforcement should be cautioned in making arrests for DUIs involving legal substances that do not yet have a specified quantitative limit. A good example of that is a 2016 case in Solano County where a man was arrested under suspicion of DUI. Arresting officers conducted a blood test of the suspect but the test came back negative for alcohol, marijuana and various narcotics. Despite no scientific evidence to bring the suspect’s case to trial, the Solano County DA’s office pushed forward with the case and charged the suspect with being under the influence of caffeine while operating a motor vehicle. It makes one ponder how many caramel frappuccinos are too many in the eyes of Solano County officials. After the case was pursued for 16 months, Krishna Abrams, the Solano County District Attorney, finally decided to drop the DUI charge. (http://abc7news.com/news/solano-county-da-drops-dui-for-caffeine-charge/1677999/). (http://www.cnn.com/2016/12/29/health/dui-charge-caffeine-california-trnd/index.html)

Hopefully SB 94’s CHP funding will train officers not to make a marijuana DUI arrest based on evidence that a person with frequently dry red eyes and slow speech is driving around in a tie-dye shirt listening to the Dave Matthews Band.

SB 94 also amends Vehicle Code section 23222 to create a new infraction when a person has any opened cannabis or cannabis products in a vehicle. The amendment generally replaces any reference from “marijuana” to “cannabis” in the language of the statute. There is an exemption for a qualified medicinal patient under specified circumstances.  (New Laws for 2018, Garrick Byers Statute Decoder). The bill also requires cannabis and cannabis products legally purchased from a licensed retailer to be sealed in opaque packaging during motor vehicle transportation or placed in the trunk of the car.

SB 65 (Approved by the Governor on September 11, 2017 and filed with the Secretary of State on September 11, 2017) is a bill that also addresses cannabis and motor safety laws. This law specifically prohibits smoking or ingesting marijuana or marijuana products while driving or riding as a passenger in a vehicle. This bill generally changes the language of Vehicle Code section 23220 to include “marijuana” and “marijuana products” to alcoholic beverage consumption in a moving vehicle. The California DMV stated on its website it will assign negligent operator point counts on driving records for this violation. In addition to the California Driver Handbook, the DMV also will revise the Motorcycle Handbook and the DMV’s website to include information related to marijuana violations. (https://www.dmv.ca.gov/portal/dmv/detail/pubs/newsrel/2017/2017_94)

As a reminder, just like open alcoholic beverage containers can provide law enforcement with permissible reason to make a traffic stop and potentially search your vehicle, open containers of cannabis and cannabis products will also do the same. Moral of the story: even though they’re both legal, keep the booze and cannabis in sealed containers or in the trunk.


Melissa Ignacio is a criminal defense attorney with the law firm of Gagen McCoy in Danville, California. Founded in 1965, Gagen McCoy is a preeminent East Bay law firm with offices in Danville and St. Helena. Ms. Ignacio graduated from UC Davis School of Law, where she served as an editor of the Law Review. To learn more about Gagen McCoy, please visit www.gagenmccoy.com or contact Ms. Ignacio at mai@gagenmccoy.com.

[1] http://www.adi-sandiego.com/pdf_forms/New_Laws_for_2018_4.pdf

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  1. Valerie Gannon,MFT says:

    Acknowledging my specialization of addiction in my Private Practice, there is excellent insight and information in this well thought out article!

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