Driving Under the Influence of Drugs
California Vehicle Code 23152(a) says driving under the influence of alcohol and/or drugs is a crime.
Vehicle Code 23152 California’s Driving under the Influence Law: “(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.”
The definition of “drugs” in California law is any substance (besides alcohol) that could affect your nervous system, brain or muscles.
California Jury Instructions tell juries to consider the following: (Criminal CALJIC 16.830) — Misdemeanor Driving Under the Influence. (“(Vehicle Code § 23152, subdivisions (a) and (c)) [Defendant is accused [in Count[s] ] of having violated section 23152, subdivision [(a)] [(c)] of the Vehicle Code, a misdemeanor.] Any person who while [under the influence of any alcoholic beverage] [or] [under the influence of any drug] [or] [under the combined influence of any alcoholic beverage and drug] [or] [addicted to the use of any drug] drives a vehicle is guilty of a violation of Vehicle Code section 23152, subdivision [(a)] [(c)], a misdemeanor. [The term “drug,” as used in this instruction, means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, [his] [her] ability to drive a vehicle in the manner that an ordinarily prudent and cautious person, in full possession of [his] [her] faculties, using reasonable care, would drive a similar vehicle under like conditions.] In order to prove this crime, each of the following elements must be proved: 1 A person drove a vehicle; and 2 At the time, the driver was [under the influence of] [any alcoholic beverage] [or] [any drug] [or] [under the combined influence of any alcoholic beverage and drug] [or] [addicted to the use of any drug].)”
If you are impaired by narcotics to the point that you can no longer operate an auto like a sober person and you get behind the wheel, then you are driving under the influence of drugs.
CALJIC 16.831 — Alcohol or Drug Influenced Driving-“Under the Influence”-Defined says, “A person is [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] when as a result of [drinking such alcoholic beverage] [and] [using a drug] [his] [her] physical or mental abilities are impaired to such a degree that [he] [she] no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances. [If it is established that a person is driving a vehicle [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug], it is no defense that there was some other cause which also tended to impair [his] [her] ability to drive with the required caution.]””
Driving under the influence of any drug can lead to prosecution. It does not matter if they are
hard narcotics such as meth, prescription drugs such as vicodin, or over-the-counter drugs such as diphenhydramine (in Tylenol PM). Even legally prescribed medications can lead to a DUI drugs charge.
The way in which investigations (and later prosecution) for DUI involving drugs differs from a DUI involving alcohol. Usually, a drug recognition expert (DRE) is called in to conduct the roadside investigation. DRE’s have special training to identify drug impairment.
In a DUI investigation involving alcohol the police would check for your blood alcohol concentration (BAC). The “magic number” they look for is .08% or greater. But in a DUI involving drugs there is no magic number that says you are definitely impaired. That makes a DUI involving drugs charge more difficult for the district attorney to prove.
The punishments for DUI are usually the same for alcohol or drugs. A basic DUI involving drugs in California is a misdemeanor. But the punishments can greatly increase if this is not your first DUI offense or if certain circumstances accompany the crime. You may be charged with a felony if it is the fourth DUI offense, you cause a collision that injures someone, or you have a prior felony DUI conviction.
The “usual” punishments for a DUI involving drugs conviction include:
1. DUI probation for 3 to 5 years,
2. Attend DUI classes,
3. Fines (about $1800 for a first offense),
4. Jail time is possible in certain counties depending on the circumstances and your prior record.
5. A suspended driver’s license
Note that more info is available in our related page on California DUI’s. The penalties can be influenced by these factors:
1. All or some of these penalties can be avoided If your charges are negotiated down to reckless driving or exhibition of speed.
2. If you were under the influence of one of the drugs listed in Health and Safety Code 11550 California’s being under the influence of drugs law, you could be charged for that as well and face additional penalties for that.
Health and Safety Code 11550 HS California’s “using and/or being under the influence” law says: “(a) No person shall use, or be under the influence of any controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), (21), (22), or (23) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (1) or (2) of subdivision (d) or in paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic drug classified in Schedule III, IV, or V, except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances. It shall be the burden of the defense to show that it comes within the exception.”
There are many defenses that are available to fight your DUI charge. Here are some of them, but there can be many more:
1. Just because you had drugs in your system does not necessarily mean that your driving skills were being influenced by those drugs
2. Collection, storage or analysis of blood or urine samples must follow strict procedures called California Title 17 procedures. Any failure to properly follow any of those procedures can be used as a defense
3. If you had reason to appear exhausted or anxious for reasons other than drugs, then the appearance of those conditions is not necessarily a sign of drug influence
Our California DUI defense attorneys have represented DUI clients throughout the state.
Our California DUI defense attorneys have local law offices near Los Angeles, Burbank, Beverly Hills, Glendale, Long Beach, Lancaster, Long Beach, Pomona, Pasadena, Torrance, West Covina, Van Nuys, Whittier and throughout the counties of Orange, Riverside, San Diego, San Bernardino, Ventura, and several nearby cities.
Below, they provide an in-depth information on what to expect during a DUI involving drugs investigation, prosecution and defense by discussing the following topics:
California Vehicle Code 23152(a) VC prohibits driving under the influence of alcohol as well as drugs. The definition of “drugs” is: any substance or combination of substances (besides alcohol), which could affect your nervous system, brain, or muscles.
A DUI involving drugs is defined as “your physical or mental abilities are impaired to such a degree that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.”
It makes no difference if the narcotics were illegal such as cocaine or marijuana, prescription such as Ambien (even if legally prescribed to you), or over the counter such as NyQuil.
The only question for a jury to decide in a California DUI case involving drugs is whether the narcotics influenced your ability to drive your auto safely. There are many indications of drug influence that the jury may consider. Your actual driving behavior at the time is just one of those indicators.
A blood sample is drawn in almost every DUI involving drugs arrest to find out what narcotics are in your system.
A charge of DUI drugs is different than an alcohol DUI because there is no set amount that determines drug influence, unlike an alcohol case where .08% is the defined limit. This means the district attorney must rely on a variety of observations and testimony to prove that you were under the influence.
A drug DUI case is defended and prosecuted in a different way than an alcohol DUI case.
A California “DUI with drugs” case usually begins when a cop sees the appearance of intoxication. If there is no indication that alcohol is involved, the cop may suspect drugs are involved instead. At this point he/she might call another officer to the scene who is a drug recognition expert (DRE). The DRE will evaluate you for signs of drug intoxication.
A drug recognition expert (DRE) is a cop who has received special training intended to identify someone who is under the influence of narcotics. The DRE program was initially run by the Los Angeles Police Department but is managed by the California Highway Patrol (CHP) now. Agencies from all over the U.S. partner with the CHP to receive DRE training.
Once the DRE arrives on scene he takes charge of the investigation. The investigation process has many steps which include:
- Confirming that there no signs of alcohol intoxication
- Checking your pulse rate
- Getting statements from the first officer
- Another go at the field sobriety tests (FSTs), including the balance test, one leg stand test,
- Looking in your mouth and nose for traces of drug ingestion,
- Looking for signs of needle injections
- Checking your muscles for tenseness or looseness (certain drugs cause tense muscles, and others cause relaxed muscles)
- Telling you to take a blood or urine test
forming an opinion as to what type of drug(s) is/are causing your impairment, and
evaluating your muscle tone (as certain drugs can cause muscles to become rigid or flaccid),
asking you to submit to a chemical DUI blood test and/or urine test.
“walk and turn” test, the “follow my finger” eye test, and the “touch your nose” test
Note that unlike an alcohol DUI field sobriety test which takes place on the roadside, the DRE’s exam should take place in a controlled area such as the police station. From information gathered through this process, the DRE will form an opinion about what type of drug he thinks you was making you impaired.
A drug DUI trial often begins with testimony from the officer who made the arrest about what he saw that made him think you were impaired such as unsafe driving, physical appearance, and performance on the tests you were given. Anything you said or did that helps the prosecution will be told to the jury and the judge.
Testimony from officers during DUI cases usually follow the same script. He/she will testify that you were not “driving with the caution characteristic of a sober person.” he will testify that you exhibited the “objective signs and symptoms of intoxication,” such as red and watery eyes, a pale face, slurred speech, and an “unsteady gait”. He will also say that you “failed to perform the FSTs as explained and demonstrated.”
This is standard for all DUI cases. But then things change between an alcohol and a drug case. The officer will testify that the signs of alcohol were not present and so he called in a DRE to check for an explanation about your impairment
Note that if a DRE did not examine you (because that law enforcement agency does not have trained DRE’s on their force or one is not available at the time), a California defense attorney specializing in DUI cases knows he can try to have the arresting officer’s testimony thrown out because he is not properly trained to form opinions about drug DUI’s. If that testimony can’t be used, the prosecutor may be forced to drop or reduce the charges during negotiations.
DRE’s are trained on the necessary standard court testimony. District attorneys work with them to ensure they know how to give convincing testimony since that testimony will be the majority of the evidence against you.
The DRE will give the jury a lengthy description of his training and why he is an “expert” in recognizing drug impairment. His testimony will focus on 3 main areas:
The first is that you were impaired but that your alcohol tests did not find enough alcohol in your system to account for your level of impairment. The second is that there were no medical conditions that explain your level of impairment. The third is his conclusion that your impairment in consistent with and explained by a specific type of drug.
The DRE will also go over all the tests that you were given so he could form his opinion. And to close things off he will discuss the results of your blood or urine test which reveal which drugs were in your system.
The drug types that the DRE can detect include:
- central nervous system depressants (for example, soma or valium or soma)
- hallucinogens (such as X, LSD, or “shrooms”)
- central nervous system stimulants (i.e., meth or coke)
- GHB (“date rape” drug)
- narcotic analgesics (codeine, heroin, Vicodin)
The blood or urine tests will list the drugs that were detected in your system. The test usually does not show how much of the drugs were in your system, but show if they were present or not.
To find out the amount of those drugs, another test must be done from the samples drawn called a “quantitative analysis.” Additional samples are usually drawn and made available for these tests. Either the prosecution or the defense can ask for these tests to be done in an effort to show that the amount was or was not enough to cause the impairment the officer described.
The Law Offices of Marc Grossman demands these further blood tests (called “blood splits”) in almost every drug DUI case. We hire an independent lab to do the blood split. If the test comes back with low amounts, it may show that the drug did not cause impairment.
Our talented defense attorneys know how to challenge the cop on the stand. There are many drug DUI defense strategies available to them. Experienced drug DUI attorneys explore all options to best fight for your defense.
These defense options can include challenging the officer’s “probable cause” that justified the traffic stop, showing that you were not properly advised of your right to remain silent and other rights, and casting doubt on whether the cops followed all of the very specific Title 17 requirements that govern the collection, storage and analysis of blood, breath, or urine samples.
Here are some examples of available defense options that are specific to drug DUI cases:
Drugs may have been in your system, but you were not “under their influence”
As you read above, the initial drug test does not indicate how much of a drug was in your system. And even if you did, the prosecutor does not want to discuss amounts because there is no defined amount at which people become impaired, and each individual has a different tolerance to different drugs.
“Tolerance” is is built up over time from use of a drug. As your tolerance goes up it would take a different amount to cause impairment than it would take for someone who has not built up any tolerance.
Different drugs may keep you impaired and stay in your system for different amounts of times, from hours to weeks. This varies by individual and is influenced by their height, weight, height, metabolism, and (as mentioned above) tolerance.
For example, let’s say Officer Mike pulled Neil over for expired tags. After observing and speaking with Neil, Officer Mike suspects intoxication so he does the field sobriety tests. The tests (including a hand-held breathalyzer) do not confirm alcohol intoxication. So Officer Mike calls for a DRE. The DRE concludes that Neil was driving under the influence of marijuana.
Neil does appear a bit “spaced,” but he in fact had not used marijuana in a couple days. The cause of his behavior was exhaustion from working 12-hour days. But after his blood is drawn, marijuana appears in his blood test.
Fortunately, Neil’s California drug DUI defense lawyer haw worked often with an expert witness who can testify that marijuana can remain in a person’s body up to six months. The expert witness also testifies that the evidence tying the presence of some marijuana in Neil’s body to driving impairment is weak.
Non-drug related situations can mimic drug impairment
Even with the testimony of the arresting officer and a DRE, a California DUI drug attorney can fight that testimony. Situations that cause allergies, fatigue, sickness, nerves, or injury, are all reasons that explain how you can appear to be impaired even though you were not actually impaired by drugs.
Other situations said to be linked to impairment can be explained in a similar way. For example, nystagmus (involuntary back-and-forth eye movement) naturally occurs in some people. Pupil size can be influenced by confusion, stress, weak or very strong lighting, etc. Poor balance can be explained by medical conditions, injuries, type of shoe (heels, safety-toed boots, etc).
Referring back to Neil’s case above, Neil had been working 12-hour shifts for the past 5 days. His impaired appearance can be explained by exhaustion.
Ultimately, an experienced California DUI defense attorney can fight almost any evidence the district attorney fires at him!
Chemical test results aren’t always accurate
Even when a blood or urine test points to drugs, those tests can always have errors that can invalidate the results including:
- Incorrect blood draw procedures
- Contaminated medical equipment
- Incorrect sample handling
- Incorrect sample storage
California DUI punishments can vary widely. They can depend on the facts of your circumstance, how many prior DUI’s you have, injuries, and your criminal history. That said, most instances of drug DUI are misdemeanors. But if you get into a Fourth offenses you’ll usually see a felony DUI charge.
Jail time is not likely in most counties on a first time drug DUI case if there were no injuries.
The following are typical results of a “basic” first-time misdemeanor drug DUI conviction:
- Three to five years of informal probation,
- Minimum $390 fine (usually closer to $1,800)
- Maximum of six months in jail, though most counties don’t give jail time for a first DUI
- Minimum 4 month driver’s license suspension
- Minimum three-months of DUI school
The punishment for a second or more drug DUI convictions are outlined in our DUI page. The differences are a longer suspension of the driver’s license and mandatory jail time which increases with each additional DUI conviction.
Also keep in mind that If you agree to take a breath test but then refuse to submit to a blood or urine test, you will be charged with a refusal to submit to a DUI chemical blood or breath test. A “refusal,” can add jail time of at least 2 days and a minimum one-year suspension of your driver’s license.
Also, if you were under the influence of one of the drugs listed in Health and Safety Code 11550 California’s under the influence of a controlled substance law, you may be charged for that crime as well. Drugs listed in 11550 include, but are not limited to, heroin, cocaine, GHB, “meth,” and PCP.
California Health and Safety Code 11550 HS mandates jail time of at least 90 days. However, first-time offenders can participate in a drug diversion program. You can do a drug program instead of going to jail and then have your case dismissed. California diversion programs are governed by Prop 36, PC 1000, and California drug court.
However, you do NOT qualify for these programs if you have a pending DUI charge. So to receive this type of alternative sentence, you need a defense attorney would can negotiate and convince the district attorney or judge to drop the DUI charges.
If you would like more information, we invite you to contact us at the Law Offices of Marc Grossman.
You may also find helpful information by reading up on Vehicle Code 23152(a); Driving Under the Influence; Vehicle Code 23152(b); Horizontal Gaze Nystagmus (HGN); Understanding Your Blood Alcohol Concentration (BAC); The Walk and Turn Test; The Romberg Balance Test; Chemical DUI Blood Tests; The One Leg Stand Test; The Finger to Nose Test; The Probable Cause Required to Initiate a DUI Investigation; California DUI Defenses; California Title 17 Procedures; Miranda Rights; DUI Probation; DUI Causing Injury; California DUI School; DMV Driver’s License Suspensions; Refusing to Submit to a DUI Chemical Blood or Breath Test; California DUI Penalties; Penal Code 1000 PC Drug Diversion; Health and Safety Code 11550 California’s “Being” Under the Influence Law; California Drug Court; Proposition 36; Marijuana; PCP; Methamphetamines; Cocaine; Heroin; Ecstasy “X”; Vicodin; Codeine; and GHB “the date-rape drug”
Call us for help…
For questions about California driving under the influence of drugs charges, contact us at the Law Offices of Marc Grossman to set up a free consultation with one of our California DUI defense attorneys.
We have local criminal law offices in and around San Diego, Los Angeles, Riverside, Orange County, Ventura, San Bernardino, and several nearby cities.