Can You Get a DUI for Driving Under the Influence of Marijuana?

Vehicle Code Section 23152(f) Driving Under the Influence

Evidence a Police Officer Uses to Determine if a Driver Is Under the Influence of Marijuana

• The defendant's performance on Field Sobriety Tests (FSTs);
• Slow reaction time
• Defendant's driving pattern;
• Statements made to the police officer;
• Finding marijuana or drug paraphernalia in the defendant's car or on the defendant
• Dilated pupils
• Red eyes
• The odor of marijuana coming from the defendant
• Dry "cotton" mouth

What Are the Charges for DUI of Marijuana?

• First DUI offense
• Second DUI offense
• Third DUI offense
• Misdemeanor DUI with injury
• Felony DUI
• Felony DUI with injury

What are the Penalties for a 1st DUI of Marijuana?

• Up to 6 months in jail;
• paying a fine anywhere from $390 to $1,000;
• 3 to 9 months of DUI school; and
• driver's license revoked for 6 to 10 months

What are the Penalties for a 2nd DUI of Marijuana?

• 96 mandatory hours in county jail to a maximum sentence of one year;
• paying fines from $390 to $1,000, 30 months of DUI school; and
• driver's license revoked for 2 years

What are the Penalties for a 3rd DUI of Marijuana?

• 120 days of mandatory jail time in county jail to a maximum sentence of one year;
• paying fines from $390 to $1,000;
• 30 months of DUI school; and
• driver's license revoked for 3 years

What are the Penalties for a Misdemeanor DUI with Injury?

• 5 days of mandatory jail time in county jail to a maximum of one year;
• paying fines from $390 to $5,000;
• taking DUI school anywhere from 3, 18, or 30 months; and
• driving license revoked for 1 to 3 years

What are the Penalties for a Felony DUI?

• 16 months of mandatory jail time in county jail;
• 2 to 3 years of state prison;
• paying fines anywhere from $390 to $1,000;
• 18 to 30 months of DUI school; and
• driver's license revoked for 4 years

What are the Penalties for a Felony DUI with Injury?

• 16 months of mandatory jail time in county jail or up to 16 years in state prison;
• paying fines anywhere from $1,015 to $5,000;
• 18 to 30 months of DUI school; and
• driver's license revoked for 5 years

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What is a Harvey Waiver?

How does a Harvey Waiver Apply to a Case?

How does Harvey Waiver Apply to a Restitution Hearing?

• victims involved; and
• the amount of financial harm the defendant caused.

What is a Restitution Hearing?

What is a Civil Compromise?

How Much will the Defendant Have to Pay as Part of Their Restitution?

What is the Difference Between a Restitution Order a Restitution Fine?

• the restitution order is paid back to the state for the crime committed by the defendant.
• the restitution fine is paid directly to the Victims Compensation and Government Claims Board. The fine can range from $300 to $10,000.

What is the California Victim Compensation Board?

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What is a Mental Health Diversion?

Mental health diversion is explained under Penal Code 1001.36. In California, a defendant is able to receive treatment if they suffer from a mental disorder. Thus, this is referred to as a "pretrial diversion."

What is a Pretrial Diversion?

A pretrial diversion postpones a defendant from taking further action on their case so that they may participate in a mental health treatment program. Thus, this allows the defendant to attend treatment and avoid jail time.

What Kind of Treatments Are Available Under a Mental Health Diversion?

The treatments that are available under the mental health diversion can be any of the following:

• Drug treatment;
• Therapy sessions; and/or
• Counseling

It is important to note that the judge must approve of the treatment plan the defendant wishes to receive prior to attending.

How Long Can Treatment Last?

The treatment the defendant seeks can last anywhere up to two (2) years, which can be conducted either as an outpatient or inpatient treatment.

What Happens After the Defendant Completes Their Treatment Plan?

If and when a defendant successfully completes their treatment, their criminal charges will be dismissed and will be as though the defendant had never been arrested to begin with. Furthermore, their record of the arrest will be sealed.

What Happens if the Defendant Fails to Complete Their Treatment Plan?

If the defendant fails to complete their treatment plan, their criminal charges will be reinstated. In other words, the criminal charges pending before the defendant may not be dropped and the defendant's case may proceed forward.

What Are Examples that Can Prevent a Defendant from Completing Their Treatment Plan?

Some examples of why a defendant may fail to complete a treatment plan include:

• Mental health experts tell the court that the defendant's effort in the treatment plan is not satisfactory; or
• The defendant is charged with a crime that illustrates violent tendencies

What Defendants Qualify for Mental Health Diversion?

Defendants who qualify for mental health diversion must meet the following conditions:

• The defendant suffers from a mental health condition that is not pedophilia, borderline personality disorder, or antisocial personality disorder;
• The mental disorder was a significant reason as to why they were charged with the violation;
• A mental health expert believes the defendant would respond to treatment;
• The defendant waives their right to a speedy trial;
• The defendant agrees to get treatment as a condition of the diversion program; and
• The court does not believe the defendant poses an unreasonable risk to public safety.

What Violations Are Ineligible for Mental Health Diversion?

The following list includes examples of violations ineligible for mental health diversion:

• Certain acts of terrorism;
• Lewd acts involving children as per Penal Code 288;
• Rape as per Penal Code 261; 261.5; or 262;
• Voluntary manslaughter as per Penal Code 192(a);
• Murder as per Penal Code 187

Los Angeles Criminal Defense Attorney

If you or someone you know has been charged with a crime eligible for a mental health diversion, contact our Los Angeles criminal defense attorneys at {meta.phoneFormatted} for a consultation. Our attorneys will evaluate the details of your case and let you know what to expect and how you can proceed.

What is Assembly Bill Number 47?

Assembly bill number 47 was approved by the Gov. Gavin Newsom on October 8, 2019 and will increase the punishment associated with using a phone while operating a motor vehicle.

When Will Assembly Bill Number 47 Go into Effect?

Assembly bill number 47 will go into effect starting July 1, 2021.

How Will the Penalties Increase Under this Bill?

Assembly bill number 47 will increase current punishment for drivers that have been convicted of a distracted driving offense by issuing a point on the driver's record for each conviction occurring within 36 months of a prior conviction for the same offense. Receiving a point on one's driver's record can lead to further issues since after having enough points, an individual's license can be suspended or revoked.

What Are Examples that Would Be Considered Penalty under Assembly Bill Number 47?

Some examples that would be considered a distracted driving offense include, but are not limited to, the following:

• Failing to wear an earpiece
• Using a non-smartphone by an underage driver (18 years or younger)
• Operating any electronic device by an underage driver (18 years or younger)

Here is an example:

Bob drives while he is texting and gets caught by a police officer. Bob gets convicted of driving while texting on January 1, 2022. On March 23, 2022, Bob again gets pulled over but this time because he was holding his phone and taking pictures while driving. Bob gets convicted of driving while using a wireless telephone. Thus, under this bill, Bob will get a point on his driving record.

What is the Current Law in California?

Under the current law in California as per Vehicle Code 23123, a driver is not allowed to operate their motor vehicle while using a wireless phone without hands-free listening capabilities. Further, a driver is not allowed under current law to hold and operate a handheld wireless phone unless that telephone or device is specifically designed to allow voice-operated and hands-free operation used at the time of driving. In other words, a driver may not use their phone to text, take pictures, or read and scroll through their phone while driving their motor vehicle.

What is the Current Law for Drivers 18 Years or Younger?

Under current law in California, a driver who is 18 years old or younger may not use their phone while driving, even if it is equipped with a hands-free capability.

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Is it a Crime to Prepare False Evidence?

What is Considered Evidence for Purposes of Penal Code 134?

• Documents
• Records
• Photographs
• Videos
• Audio recording
• Weapons

How is Intent Defined for Purposes of Penal Code 134?

What Proceedings Are Governed under Penal Code 134?

What Are the Penalties for Violating Penal Code 134?

Will an Individual's Gun's Right Be Affecting if in Violation of Penal Code 134?

Will an Individual Face Immigration Issues if in Violation of Penal Code 134?

What is Considered Inadmissible for Purposes of Immigration Consequences?

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What is an Examination Under Oath?

An examination under oath is a request by an automobile insurance company to have a policyholder provide sworn testimony under penalty of perjury.

Why Is an Examination Under Oath Requested?

In examination under oath is typically requested because there is unresolved conduct by the policyholder that further needs investigating. In extreme cases, an examination under oath may be requested from the policyholder due to accusations involving insurance fraud.

Can a Policyholder Refuse to Participate in an Examination Under Oath?

No, a policyholder cannot refuse to participate in an examination under oath. In fact, a policyholder's claim can be denied based on failing to submit to an examination under oath.

Who is the Examination Under Oath Conducted by?

The examination under oath is typically conducted by an insurance defense attorney.

What a Policyholder Should Know Before Participating in an Examination Under Oath?

The following is a list of things, although not a complete list, that the policyholder should know before participating in an examination under oath:

• The insurance company may conduct the examination only to get information that is relevant and reasonably necessary for handling or investigating the claim;
• The insurance company may not conduct an examination for any improper purpose, such as to harass or intimidate an insured;
• The examination may only be conducted at a reasonably convenient place, upon reasonable notice, and for a reasonable length of time;
• The insured may be represented by their counsel and may record the examination in its entirety;
• The insurance company, through its counsel, may notify the policyholder that, they may request a copy of the transcript in order to review and make corrections, if necessary;
• Objections can be made during an examination, however, if an objection results in the policyholder failing to provide information that is material to the claim, the insurance company may deny the claim in whole or in part;
• A policyholder who submits a false or fraudulent claim may be subject to all criminal and civil penalties under California law.

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What is Assembly Bill 1950?

Assembly Bill 1950 was approved by the governor of California on September 30, 2020, and changes the probationary time period for misdemeanors and felonies. Namely, this bill makes it so that a probationary period on certain misdemeanor or felony violations is caped to 1 year for misdemeanors and 2 years for felony violations.

What is the Difference Between a Felony and a Misdemeanor?

The difference between felonies and misdemeanors is that a penalty for a misdemeanor violation includes up to one year in jail. On the other hand, a felony violation involves at least one year in prison. In other words, misdemeanors are considered to carry a lighter penalty than felonies.

When does Assembly Bill 1950 Become Effective?

Based on the language of this bill, the cap on a probationary period of certain misdemeanors and felonies has already taken effect, on January 1, 2021.

What Misdemeanor and Felony Violations Are Not Impacted by Assembly Bill 1950?

The interpretation of Assembly Bill 1950 makes it so that the following violations are not impacted by the bill:

• Mandatory Probation Period;
• Violent Offenses; and/or
• Certain Felony Financial Offenses.

What is Considered a Mandatory Probation Period?

A mandatory probation period is a term that accompanies certain misdemeanors and felonies. In other words, some misdemeanors and felonies include a mandatory length for probations within the sentencing provisions. Some examples of this can be found with domestic violence charges or those regarding Driving Under the Influence (DUI). Thus, these charges do not qualify for a shorter length for probation under the terms of the bill.

What is Considered a Violent Offense?

A violent offense includes charges such as those for child abuse, domestic violence, domestic abuse, felony assault, assault with a deadly weapon, murder, and arson. Thus, these charges are considered serious and cannot qualify for a shorter length for probation under the terms of the bill.

What is Considered a Felony Financial Offense?

Charges of a felony financial offense include theft, embezzlement, and fraud. Thus, these charges do not qualify for a shorter length for probation under the terms of the bill.

Los Angeles Criminal Defense Attorney

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Can You Leave an Animal in a Hot Vehicle?

What Circumstances Jeopardize the Animal's Health or Wellbeing?

• Heat;
• Cold;
• Lack of adequate ventilation;
• Lack of food for a prolonged time;
• Lack of water for a prolonged time; or
• Any other reasonable circumstance that could be expected to cause suffering, disability, or death to the animal.

What are the Penalties Associated with Violating Penal Code Section 597.7?

What is an Infraction?

What is a Misdemeanor?

Can Another Individual Remove the Animal from the Hot Vehicle Without Legal Consequences?

• The individual took reasonable action in good faith that was necessary in order to protect the animal from imminent danger or suffering;
• The individual determined that the vehicle was locked or otherwise had no reasonable way for the animal to be removed from the vehicle;
• The individual contacted local law enforcement, 911, the fire department, or animal control;
• The individual remained with the animal in a safe location until a responder arrived;
• The individual used no more force than was necessary under the circumstances to rescue the animal; and
• The individual immediately turned the animal over to a representative from law enforcement, animal control, or emergency responder.

Does A Penal Code Section 597.7 Conviction Impact Immigration?

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Is it Illegal to Carry a Loaded Firearm in California?

What is the Penalty for Carrying a Loaded Firearm?

• up to one year in county jail; and/or
• pay fines of up to $1,000.

Can Penal Code 25859 be Charged as a Felony?

• The firearm was stolen;
• The individual was prohibited from owning or possessing a firearm;
• The individual belongs to a criminal street gang; or
• The individual had another prior felony or firearm conviction

What is the Penalty for a Carrying a Loaded Firearm Felony Charge

• up to three years; and
• a possible fine of up to $10,000.

What is a Firearm Under California Law?

• pistols
• revolvers
• shotguns
• rifles

What is Considered a Loaded Firearm?

• has an unused cartridge;
• a shell in the firing chamber;
• there is an unused cartridge;
• a shell in either the magazine; or
• clip attached to the firearm

Can You Still Possess a Firearm if You Have Been Convicted?

Are there Exemptions to Penal Code 25859 PC?

• A California police officer carrying a loaded firearm;
• A member of the United States military carrying a loaded firearm;
• A federal law enforcement agent carrying a loaded firearm;
• A person who has a concealed carrying permit.

Related Firearm Offenses

• Penal Code 29800 PC Felon in Possession of a Firearm
• Penal Code 25850 PC Carrying a Loaded Firearm
• Negligent Discharge of a Firearm Penal Code 246.3(a) PC

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What Laws Pertain to Animal Abuse and Cruelty?

Penal Code section 597 pertains to animal abuse and cruelty. It is illegal under Penal Code section 597 for an individual to maliciously kill, harm, maim, or torture an animal.

What Are the Penalties for a Violation of Penal Code Section 597?

The penalties associated with a violation of Penal Code section 597 are treated as a wobbler. In other words, a violation of this penal code can be charged as either a misdemeanor or felony. Should the prosecuting agency decide to treat the violation as a misdemeanor, an individual can face up to one year in county jail and may pay fines of up to $20,000. On the other hand, should the prosecuting agency decide to treat the violation as a felony, an individual may face up to three (3) years in state prison and may pay fines of up to $20,000.

What Does Maiming Mean for Purposes of Penal Code Section 597?

For purposes of Penal Code 597, maiming means to disable or disfigure an animal permanently or depriving it of a limb, organ, or other body parts.

What Does Torture Mean for Purposes of Penal Code Section 597?

For purposes of Penal Code 597, torture means to act, or failure to act, or neglect that causes unnecessary physical pain or suffering to the animal.

What Act Qualifies as Acting Maliciously for Purposes of Penal Code Section 597?

The acts that qualify as acting maliciously for purposes of Penal Code 597 are those involving intentionally doing a wrongful act by the individual.

Does a Violation of Penal Code Section 597 Impact Immigration?

A violation of Penal Code section 597 may impact immigration status. California courts rule that serious cases of animal abuse can result in deportation, though this depends on the facts of the matter to determine its seriousness.

Can an Individual Get an Expungement for a Conviction Under Penal Code Section 597?

Yes, an individual may get their conviction of Penal Code section 597 expunged if the following are established:

• The conviction was for misdemeanor abuse; and
• The defendant successfully completed either their jail term or probation.

Please note that an expungement for a felony conviction does not qualify for an expungement.

Los Angeles Criminal Defense Attorney

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