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California’s Prop 64 and the Impact on DMV License Suspensions

California’s Legalization of Marijuana   On November 8, 2016, California voters overwhelmingly passed Proposition 64 to legalize the recreational use of marijuana in the State.  Capturing 59% of the vote, Californians authorized the use of marijuana with some conditions.  Beginning in January 2018, anyone who is 21 years or older may purchase marijuana at regulated dispensaries with a 15% tax.  Those same persons may grow up to six plants in their homes, provided they are behind closed doors and out of public view.  Adults are permitted to possess up to 28.5 grams of marijuana or up to 8 grams of concentrated marijuana.  The new law also calls for the resentencing or release of people who are currently incarcerated for marijuana related crimes.

Many believe the legalization of marijuana is a topic whose time has come.  They argue the use of marijuana is less dangerous than tobacco and alcohol and that California’s roadways are no more dangerous because of this new law.  Clearly, the California Department of Motor Vehicles does not agree.

How Does the California DMV View Marijuana Use?   Although the passage of Proposition 64 legalized the possession and recreational use of marijuana, it did not go so far as to legalize the use of marijuana while driving.

  • California Vehicle Code section 23222 (b) still makes it unlawful to possess more than one ounce of marijuana while driving;
  • California Vehicle Code section 23152 (e) it is unlawful to operate a motor vehicle while under the influence of ANY drug.
  • California Vehicle Code section 23152(f) makes in unlawful to operate a motor vehicle under the combined influence of ANY drug and alcohol.

These sections apply directly to the prosecution of DUI in the court process and a court may order the suspension of a person’s driving privilege as part of the penalty.

Under current law, however, the California DMV is not authorized to administratively suspend or revoke a driver license for being under the influence of marijuana because the California Legislature has not authorized an Administrative Per Se section of law as they did with alcohol related DUI.  Under California Vehicle section 23152(b), the DMV is authorized to administratively suspend or revoke the driving privilege of any person who drives a motor vehicle with a blood/alcohol concentration of .08% or greater (.01% or greater for those under 21 or who are on DUI probation).  Because there currently is no law or science which indicates that impairment occurs with a certain level of Tetrahydrocannabinol (THC) in the blood stream, Admin Per Se laws do not apply and the DMV’s hands are bound.

Currently the California DMV and most law enforcement agencies view the use of marijuana as an epidemic on California’s roadways that is being exacerbated by its legalization.  A recent study that was commissioned by the California DMV reviewed the effect on the numbers of fatal traffic accidents in 13 states that had legalized the recreational use of marijuana.  The study suggested that in states where the use of marijuana had been legalized, the number of fatal traffic accidents rose by 2.1%.  The study strongly encouraged that California research the issue to develop an accurate means for police officers to estimate the amount of THC in a person’s bloodstream at the time of driving; and further encouraged the Legislature to develop Admin Per Se laws to combat the use of marijuana while driving.

At this point in time, the California DMV views the legalization of marijuana as a pariah that makes California’s roadways more dangerous; and because the department’s hands are tied by not having Admin Per Se laws to suspend a person’s driver license, the DMV has found a different way to suspend or revoke the driver license.

How is the DMV Suspending a Driver License for Marijuana Use?  As stated above, the California Legislature has not yet adopted Administrative Per Se Laws that would allow for the administrative suspension/revocation of a driver license for having a certain level of THC in the blood stream.  Based on this, it has been the policy of the DMV to seek the suspension or revocation of a person’s driving privilege if they can prove that person is habitually using or is addicted to the use of marijuana.

In some instances, the DMV has focused on medical marijuana patients by suggesting the underlying medical problem that is treated by marijuana makes the person unsafe to drive.  For example, if the driver uses medical marijuana to treat glaucoma, the DMV has a history of claiming the patient’s vision problem makes them unsafe to drive.

These two tactics have the effect of drawing the driver into the DMV’s onerous “Re-Examination” process that can actually suspend or revoke that person’s driver license for an indeterminate period of time.

 What Can I Do to Protect Myself?   It is abundantly clear the California DMV feels hamstrung by its inability to suspend or revoke the driving privilege of people who legally use marijuana.  We believe the recent passage of Prop 64 will further incense the management at the DMV to the point they will become even more aggressive in finding ways to steal a person’s driver license.

If you receive notification from the California DMV that they are acting to suspend or revoke your driving privilege, you should immediately call the DMV Defense Experts at California Drivers Advocates (CDA).  We are an organization exclusively devoted to defending California drivers at license suspension hearings, including those that stem from the legal use of marijuana.  We strongly encourage all California drivers to fight aggressively to prevent the DMV from stealing your driver license.  If you have questions, you can research our website at www.dmv-defenders.com or call us for a free consultation at (888) 281-5244.

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