According to California VC 23152, subdivisions f and g, it is an offense to operate a vehicle under the influence of drugs, commonly known as DUI drugs. The law considers you under the influence of a drug if it prevents you from no longer driving as a sober person would under similar circumstances. You could face DUID charges if you are under the influence of any drug, including illegal drugs, over-the-counter medication, or prescription drugs. You could also be under the combined influence of drugs and alcohol. If you face DUI drugs charges in Pasadena, CA, attorneyAnn Gottesman can help you create a solid defense to fight these charges.
Laws That Prohibit Driving Under the Influence Of Drugs
Two California laws makes it a crime for a person to drive under the influence of drugs:
- California VC 23152(f) prohibits driving under the influence of drugs
- California VC 23152(g) prohibits driving under the combined influence of drugs and alcohol
The law defines a drug under VC section 23152 as any substance or a combination of substances (excluding alcohol) that affect a person's brain, nervous system, and muscles, such that it would appreciably impair a person’s ability to drive with the ordinary caution of a driver in full possession of his or her faculties using a reasonable amount of care under similar circumstances. Such drugs often include those in the following categories:
- Illegal drugs like methamphetamine, heroin, and cocaine
- Legal drugs like marijuana
- Prescription medication, even if the medication doesn't make a driver high
- Over-the-counter medicines like antihistamines or cold medications
The drugs commonly associated with DUI drugs charges include:
- Prescription drugs or opiates like Vicodin and Oxycontin
You could face charges for using any drug provided the drug affects your brain, nervous system, or muscles to the point of legal impairment, even if you need the drug for your medical health.
The Allowable Limit of Drugs
Under California law, there is no specific limit for drugs. In the case of driving under the influence of alcohol, the law states that a driver should not drive with a BAC (blood alcohol content) of 0.08% or more. However, drug experts have never agreed regarding the concentration of drugs in a driver's bloodstream that makes them too impaired to drive. Therefore, you could face DUI drugs charges provided you have a detectable level of drugs in your system and are impaired. The law states that it is against the law for a driver to operate a vehicle:
- While under the influence of drugs
- Under the combined influence of drugs and alcohol
- While addicted to a drug
However, you may drive while addicted to a drug provided you are undergoing treatment for the drug addiction at an approved program.
DUI Drugs Investigations
Just like the typical DUI investigations, a DUID investigation typically starts with a traffic stop. If a driver appears intoxicated, the police will begin a DUI investigation. To begin with, the law enforcement officer will ask the driver whether they have used drugs or alcohol. The officer will then ask the driver to submit to a PAS (Preliminary alcohol screening) test usually conducted on a handheld breathalyzer.
The law enforcement officer may also request the driver to submit to Field Sobriety Tests (FSTs). All along, the officer will observe the driver and look for signs of intoxication. The common symptoms of intoxication include constricted or dilated pupils, unusual heart beat, sweating, and other physical signs. The law enforcement officer will also check the vehicle to see whether there is a presence of drugs or drug paraphernalia. However, the legality of the stop as well as any search of a person or their vehicle must comport with the constitution and not be illegal. If a detention, arrest or search was conducted in violation of the Fourth Amendment of the US Constitution, your lawyer will want to file a motion to suppress the evidence, in accordance with Penal Code section 1538.5.
The officer will suspect drug use if the driver's BAC is below the legal limit of 0.08%, but the driver still appears intoxicated. If the law enforcement officer suspects drug use, they may request the assistance of a drug recognition expert (DRE) to evaluate the driver. The driver may have to submit to a mouth swab test or a blood test to determine if drugs are in their system. In Los Angeles the officers and sheriff deputies that investigate DUI drivers will request the driver complete a blood test to determine if drugs were consumed. Remember, it is not illegal in itself to have a detectable amount of drugs in your blood while driving. The prosecution must prove you were impaired while driving the vehicle.
The Role of A Drug Recognition Expert
A drug recognition expert is a law enforcement officer who possesses special training. This unique training enables the officer to determine whether a driver is under the influence of narcotics. The DRE program is currently run by CHP (California Highway Patrol).
Initially, LAPD (Los Angeles Police Department) ran the DRE program. Many law enforcement agencies throughout the U.S currently use the DRE program. Several decades ago the National Highway Traffic Safety Administration (NHTSA) worked with LAPD to spread DRE training programs to other states in the country.
Not every driver suspected of DUI drugs will be subject to a DRE evaluation because some California counties do not have DREs. When a DRE arrives, they take over the DUI drug investigation.
The drug recognition expert follows certain steps to determine if a driver is under the influence of drugs.
- Checking the driver’s BAC level to ensure that the driver is not intoxicated with alcohol
- The DRE will also interview the arresting officer to get all the facts of a case.
- The DRE will also examine the driver and check the driver’s physical states like pupil size (an officer may use a pupilometer), pulse rate, muscle tone, traces of drugs in the nostrils or mouth, track marks on injection sites, etc... The DRE checks the muscle tone because certain drugs could make the muscles flaccid or rigid.
- The drug recognition expert may also conduct an eye-tracking exam. This exam helps check for the involuntary jerking of the eye, commonly known as horizontal gaze nystagmus (HGN). The involuntary jerking of the eye is a standard indicator that a driver is under the influence of drugs.
- Next, the DRE may also re-administer several sobriety tests. These tests include the walk and turn test, Romberg balance test, finger to nose test, and one-leg stand test.
- The DRE will also ask the driver about drug use while observing them for signs of drug use.
- Finally, the drug recognition expert will ask the driver to submit to a urine test or a blood test.
Unlike a PAS test or a DUI breath test that usually takes place on the roadside, a DRE's evaluation occurs in a controlled environment. A DRE evaluation typically occurs in a well-lit area. This allows for better investigation than a roadside evaluation. After conducting an evaluation, the DRE will give an opinion on whether a driver is under the influence of drugs and, if so, which drug is involved.
Whether A Driver Is Entitled To Certain Rights During A DRE Evaluation
During a DRE evaluation, the driver can exercise their Fifth Amendment rights against self-incrimination. A driver does not have to submit to the field sobriety tests or answer all questions the DRE poses. If a driver has not yet been placed under arrest, there are no consequences for a chemical test refusal.
However, the driver may face the consequences for refusing to submit to a chemical test if the driver is below 21 years or currently on DUI probation. The law enforcement officer can take the driver into custody if they have probable cause to believe that a driver is intoxicated with drugs.
If the driver is not yet in custody and is no longer free to leave, the officers do not have to read to the driver their Miranda rights, contrary to the popular perception. However, the police must read the Miranda rights to the driver once the driver is in custody, and the police intend to ask the driver some questions that could elicit incriminating answers.
Examples of questions that could elicit incriminating responses include asking the driver whether they had used the drugs, the quantity of drugs they've used, and when the driver was impaired when they got into the car. If the police are asking the questions before a driver has been arrested, they do not need to read the Miranda rights to the driver. This is why it is so important to know your constitutional rights! You do not have to answer any questions and can politely state you exercise your right to remain silent and talk with a lawyer.
Submitting To A Chemical Test For Drugs or Alcohol
After an arrest for driving under the influence, a driver must not refuse to submit to a chemical test. A driver has the choice of submitting to a DUI blood test or a DUI breath test. Even if a driver had initially submitted to a PAS test (don’t do this unless you are under 21 or required to by probation terms!), they must submit to a chemical test. Refusing to submit to a chemical test has consequences, including automatic suspension of your driver’s license for at least one year (no restricted license options) if the DMV has sufficient evidence to prove it is a legitimate refusal under VC 23612.
Under certain circumstances, the law requires a driver to submit to a DUI blood test even if a driver had already submitted to a breath test. For example, a driver may have to submit to a blood test if:
- The law enforcement officers suspect a DUI drug or that the driver is under the influence of both drugs and alcohol.
- An officer may require a driver to submit to a blood test to reveal the necessary evidence to prove that a driver is intoxicated.
The police are likely to order a blood test if the breath test indicates that a driver is not under the influence of alcohol, but the driver still appears intoxicated. Unless the police have an arrest warrant, they cannot forcibly draw the driver's blood without their consent. This is tricky because while the police need a warrant, if you refuse to take the blood test and the police obtain a warrant, you may then be subject to a refusal allegation.
After drawing a driver's blood on suspicion of DUI drugs, the driver's blood is sent for a toxicology screen. The toxicology screen helps reveal any drugs in a driver's system. However, the toxicology screen doesn't reveal the concentration of drugs in a driver's system. It only indicates whether a driver tests positive for the presence of a specific drug.
If the test reveals the presence of a drug in a driver's system, the lab can then conduct a quantitative analysis to reveal the exact amount of drugs in the driver's system. The DUID law doesn't set a threshold for drugs, unlike California's per se drug laws for alcohol. Experts have never agreed on the concentration of drugs in the bloodstream that makes a driver too intoxicated to drive. California law only states that it is illegal to drive while under the influence of drugs, the combined influence of both drugs and alcohol, or while addicted to a drug unless you are undergoing treatment for the addiction.
Blood Test Results Are Not Conclusive
Usually, the blood test results are not conclusive. However, with the help of a drug recognition expert, the prosecutor can still use these results to show that:
- There was the presence of drugs in the driver's system
- The level or quantity of drugs present in the driver’s system
- At times, the test results may reveal how often the driver may have taken the drug
However, none of the factors outlined above is considered conclusive in determining whether a driver is impaired. Therefore, the prosecutor mainly relies on the following when accusing someone of DUI of drugs:
- The arresting officer’s observation
- The DRE's observations, if any
- The expert witness’s testimony
What You Should Expect During A DUI Of Drugs Trial
During a DUI drug trial, the arresting officer testifies. The officer outlines why they perceive that you are under the influence of drugs. Some of the factors that could make the arresting officer suspect that you are impaired are:
- Driving in an unsafe manner
- Exhibiting physical signs of intoxication
- Your performance in the field sobriety tests
The arresting officer will highlight everything you did wrong. The arresting officer will strive to prove that you were not driving with the caution of a sober person. The officer may also state that you showed the following physical signs of intoxication:
- Slurred speech
- Red and watery eyes
- An unsteady gait
- A flushed face
- Elevated heart rate
- Pupil not dilating normally
If the arresting officer subjects you to field sobriety tests, they may state that you did not perform satisfactorily in the tests. Unlike a standard DUI case, a failed breath test doesn’t mean much in a DUI drug case. However, if an arresting officer administers a breath test and the test reveals that you are not under the influence of alcohol, they will suspect that you must have used drugs. The arresting officer's testimony is crucial to the prosecutor, especially if the defendant tries to state that they were arrested without probable cause. This is why it is important to have an experienced DUI defense attorney and a sharp toxicologist who can testify for the defense.
The DRE’s Testimony
The most crucial evidence in a DUI drug case is the DRE's testimony. Usually, drug recognition experts undergo training on how to testify in court. Most district and local city attorneys work with DREs to ensure that they learn how to testify persuasively. As a result, many drug recognition experts come across as very professional when testifying in court. Many drug recognition experts often begin by testifying about their vast qualifications and training. They then go ahead to testify about their roles in the DUID case, including:
- Proving that the driver’s intoxication or impairment did not result from alcohol impairment alone
- Confirming that a driver was not suffering from any medical condition and that the driver’s symptoms were due to intoxication with drugs
- Proving that a driver was under the influence of a particular category of drugs
The DRE may also outline the 12-step evaluation process they followed during the investigation phase. The expert will mainly focus on the evidence supporting their conclusion regarding the type of drug the driver had used. For example, the drug recognition expert may conclude that a driver was impaired by:
- A central nervous system depressant like soma and valium
- A hallucinogen like ecstasy, LSD, or magic mushroom
- A central nervous system stimulant like cocaine, meth, or amphetamines
- A narcotic analgesic like codeine, heroin, or Vicodin
- Any other drug that does not fall under the outlined categories
When A DRE Is Not Present
If a drug recognition expert is not present, your case may be more challenging to prove. The arresting officer may have some training in drug recognition. However, your criminal defense attorney can bring a motion to exclude evidence if the arresting officer is not trained in drug recognition and there was no DRE. The attorney may state that the arresting officer could not determine whether you were under the influence of drugs. If crucial evidence is excluded then the prosecutor may be forced to dismiss the case due to insufficient evidence. The prosecutor may also offer a steep reduction in the charge f they believe their case is less likely to be won.
The Prosecutor Introduces The Results of Your Blood Test
During a DUI drugs trial, the prosecutor will also introduce the results of your blood test. The results from a blood test mainly take two forms:
- A toxicology screen test that reveals the presence of drugs in your system
- A quantitative analysis that indicates the amount or the level of drugs detected through a toxicology screen
The prosecutor may then bring in an expert witness to testify that the level of drugs in a driver’s system is consistent with the perceived impairment level.
The Penalties For DUI Drugs
Typically, DUI drugs are charged as a misdemeanor offense under California law. However, the crime may be charged as a felony if:
- It is your fourth or subsequent DUID offense
- You have a prior felony DUI conviction even if your only criminal record consists of one felony DUI
- Another person was killed or injured because of your DUI drugs offense
The typical penalties for a first-time DUID offense do not include jail time. Instead, the penalties for a first-time violation may comprise of:
- An informal DUI probation lasting between three to five years
- A fine of not less than $390. After adding the penalties and assessment fees, the fee may rise to around $1800
- A suspension of your driver’s license for six months
- Attending DUI school for a minimum period of three months
In a worst-case scenario, a first-time DUID conviction could lead to a jail time of up to six months in county jail. However, a jail sentence is not typical for a first-time offender. When you commit a second-time DUI drugs offense, the penalties include probation, fines, and DUI school. You will also be subject to a longer license suspension. The minimum jail time will increase with each subsequent DUI or wet reckless offense that you commit. If the prosecutor charges you with a felony DUI drugs, the penalties will include:
- Imprisonment of six months to four years in county jail
- A fine ranging between $1,000 and $5,000
- Revocation or suspension of your driver’s license for a minimum period of one year
The defendant may be sentenced to a felony or formal probation instead of jail time in some cases. The penalties you face for a DUI drugs offense will vary depending on the following factors:
- Your criminal history, including the previous wet reckless and DUI offenses
- The circumstances of the crime
- Whether any third party suffered injuries because of your drunk driving
- Whether you would benefit from a drug treatment program
Drug Diversion Program
If you are charged with a misdemeanor DUI drugs offense, you may be eligible for judicial diversion under Penal Code section 1001.95. However, this is currently a gray area of the law and many judges do not believe DUI charges are eligible for judicial diversion. Yet, as of the writing of this, some judge have granted judicial diversion on first or second time DUI cases when the defendant can show serious mitigating factors. If diversion is granted, then the case will be ultimately dismissed entirely. If a DUI drug case is very weak, some prosecutors may agree to change the charge to being under the influence in public of a drug, a charge that can be diverted in the following ways:
- California drug court
- Prop 36 drug diversion
- PC 1000 drug diversion
If you participate and complete a drug diversion program, all the charges against you will be dropped. The good thing about a drug diversion program is that there will be no conviction on your record. However this only happens if the prosecutor agrees to dismiss the DUI charge and add a charge that is eligible for drug diversion.
Operating A Vehicle While Addicted To A Drug
According to California VC 23152(c), operating a vehicle while addicted to any drug is an offense. This crime is a form of driving under the influence and carries the same penalties as DUI drugs. However, an exception to this statute is if you are currently participating in an approved drug treatment program. However, even if you are participating in a drug treatment program, operating your vehicle while high is still an offense.
DUI Drugs Legal Defenses
You can use several legal defenses to fight a DUI drugs conviction:
- The law enforcement officers did not have probable cause to initiate a DUI investigation or a traffic stop
- The police did not advise you regarding your Miranda rights, including your right to remain silent, before interrogating you.
- The law enforcement officers did not follow the Title 17 procedures while collecting and analyzing your breath, blood, and urine samples.
- The physical signs of intoxication were due to other causes like allergies, fatigue, sickness, nervousness, or injury.
- Inaccurate chemical test results
Find A Criminal Defense Attorney Near Me
When law enforcement officers arrest you for DUI drugs, you should not panic. Instead, you should find an experienced DUI defense attorney to help you create a convincing defense to fight the charges. The Law Office of Ann Gottesman has helped many people fight DUI drugs charges in Pasadena, CA. Contact Ann at 626-710-4021. (For texts, send message to 818-606-3142.) She will personally speak to you because she answers her own phone. No paralegals or secretaries separating Ann from her clients!