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August 26, 2016


Driving under the influence of alcohol has a “per se” law, meaning “on its face” which creates a presumption that a person is guilty of DUI alcohol if that person has a blood alcohol content (BAC) of .08 or above. The .08 BAC was not arbitrarily chosen. Instead, tests were done to determine how much alcohol in a person’s blood system would cause impairment. These tests take into account that because alcohol is stored in water throughout a person’s body, the level of alcohol would be consistent throughout that person’s body. Alcohol is also absorbed and burned off from a person’s body at a fairly consistent rate.


Can the same science that created a per se illegal BAC also be applied to tetrahydrocannabinol (THC), the active ingredient in marijuana that makes a person high? The short answer to this question is no. However do to the legal trend of decriminalizing marijuana I expect various law enforcement agencies to do their very best to create a per se THC limit that cannot be scientifically justified. Keeping this in mind one must make sure that he is prepared to defend himself or herself for unjustified prosecutions for DUI marijuana.


One reason that there should not be a per se THC law is that THC is not stored in water. Instead, it is stored in the fatty tissues of a person’s body. So, you cannot really get an accurate level of THC from someone’s blood. Also, it is not burned off at a constant rate like alcohol is because it is being stored in fat. So, you cannot scientifically apply a burn off rate for THC. The more fat a person has in his or her body the longer it would take for that person to burn off the THC. Below I will provide 2 examples to illustrate this argument.


Let’s say that Adam is morbidly obese in that he is 5’6” tall and weighs 300 pounds. Unfortunately Adam develops glaucoma and begins a daily regimen of eating a pot brownie with his breakfast and smoking 3 bowls after dinner. He follows this regimen and chooses not to drive until his glaucoma clears up. Six weeks later Adams vision clears and he immediately discontinues all marijuana use and begins driving again. He no longer feels the effect of marijuana and is pulled over after 2 days of quitting and drug tested for DUI. High levels of THC are found in Adam’s blood system although he has not smoked in 2 days. If legal limits of THC were set Adam would most likely be charged with DUI THC.


Now consider Betty. Betty loves to smoke pot. She is a raw vegan who does yoga daily and has a very low body mass index. Betty smokes a bowl of marijuana and is pulled over 2 hours afterwards.

She still feels the effects. However, because she has so little body fat there are only trace amounts detected in her blood.

If there was a legal limit for THC Betty likely would be too low to be charged with DUI THC.

In conclusion, if legal limits of THC are set there will be a lot more arbitrary DUI prosecutions. With that being stated, make sure you have a lawyer who knows how to fight DUI THC.

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Top Gun DUI Defense Attorney Myles L. Berman

Myles L. Berman, Top Gun DUI Defense attorney offers unwavering support and strategic defense in DUI cases across Southern California. Experience a personal commitment to protecting your rights and securing positive outcomes.

Call now for a FREE case evaluation (888) 486-7486

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