An explanation of "Driving Under the Influence of Drugs" (DUID) in California

California Vehicle Code section 23152(a) penalizes drivers who drive under the influence of alcohol and/or drugs. Prosecution for a California DUI is pretty much the same whether drugs or alcohol are charged. The major difference lies in the DUI investigation.

In this article, our "driving under the influence of drugs" (DUID) attorneys will provide a comprehensive guide to understanding this offense. Topics that will be addressed include:

Driving Under the Influence of Drugs -- California Vehicle Code Section 23152(a) VC

DUI with Drugs -- What the Cops Look For

How Does the Prosecutor Prove that I was DUID Under California Vehicle Code 23152(a)?

How Do I Defend Against a California DUI of Drugs Charge Under California Vehicle Code 23152(a) VC?

What are the Penalties and Punishment that I Face if Convicted of DUID under California Vehicle Code 23152(a) VC ?

If after reading this article you would like more information, we invite you to contact us at one of our conveniently located local DUI law offices.

Driving Under the Influence of Drugs -- California Vehicle Code Section 23152(a) VC

California Vehicle Code 23152(a) VC prohibits driving under the influence of drugs. "Drugs" means any substance or combination of substances, other than alcohol, which could affect your central nervous system, brain, or muscles.

You are driving under the influence of drugs (DUID) if "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 is irrelevant whether the drugs were legal or illegal, prescription or over-the-counter. The only issue in a California DUID case is whether the drugs affected your ability to safely drive your car. On that note, the way you drove isn't conclusive of whether you were DUI...it's just one factor that the jury may take into consideration.

Unlike a California DUI involving alcohol under California Vehicle Code 23152(b), DUID imposes no "per se" limit (such as a maximum BAC level) to quantify when you are "under the influence". In that respect, "DUI drugs" is actually very similar to an alcohol related DUI under California Vehicle Code 23152(a)...both rely on subjective, personal observations rather than science.

DUI with Drugs -- What the Cops Look For,

A California "DUI with drugs" investigation typically begins when the investigating officer believes you are DUI despite a low or nonexistent breath alcohol concentration (BAC) level. Although protocol for this varies among law enforcement agencies, police usually call in a "DRE".

• What is a DRE?

  A DRE or Drug Recognition Evaluator is a law enforcement officer with special training to identify when a DUI suspect is under the influence of narcotics. The DRE program started in the Los Angeles Police Department (LAPD), is now run by the California Highway Patrol (CHP).

  In California, the DRE takes over your DUI investigation once he/she arrives. The DRE conducts a 12-step evaluation that includes:

  1. Confirming that your BAC isn't indicative of someone who is under the influence of alcohol,
  2. Interviewing the arresting officer,
  3. Conducting a preliminary examination, which includes checking your pulse rate,
  4. Conducting an eye exam or "tracking exam" to see if you have horizontal or vertical gaze nystagmus (an involuntary "jerking of the eye" that, if present at a certain level, indicates drug and/or alcohol consumption),
  5. Re-administering the Field Sobriety Tests (FSTs), including the "Romberg balance" test, the "walk and turn" test, the "one leg stand" test, and the "finger to nose" test,
  6. Taking your vital signs and re-checking your pulse rate,
  7. Conducting a dark room exam of your pupil size and checking your nasal and oral cavities for drug ingestion,
  8. Evaluating your muscle tone (as certain drugs can cause muscles to become rigid or flaccid),
  9. Checking for injection sites and taking a third pulse rate,
  10. Questioning you about your alleged drug use and otherwise observing your behavior,
  11. Forming an opinion as to what type of drug(s) is/are causing your impairment, and
  12. Obtaining a blood or urine sample.

  The DRE's evaluation usually takes place in a well-lit, controlled area (for example, at a police station, rather than roadside where a typical DUI investigation takes place).

How Does the Prosecutor Prove that I was DUID under California Vehicle Code 23152(a)?

Like an alcohol related DUI, the arresting officer will begin by testifying about your perceived impairment.the unsafe manner in which you drove, your physical appearance, and your FST performance. Everything you did "wrong" will be highlighted for the judge and jury.

• The Arresting Officer's "Standard" Testimony

  The arresting officer will surely testify that you weren't "driving with the caution characteristic of a sober person". He/she will also, no doubt, testify that you exhibited the "objective signs of intoxication". These signs include:

  • Red and watery eyes,
  • Slurred speech,
  • A flushed face, and
  • An "unsteady gait".

  Testimony that you "failed to perform your FSTs as explained and demonstrated" will also be included.

  Unlike a DUI involving alcohol, the breath test results will not be introduced to corroborate this testimony. The arresting officer will explain that those results were much lower than he/she would have predicted.which is why the officer requested a DRE.

*When a DRE isn't available or isn't part of your local law-enforcement's team, a DUID becomes more difficult to prove. If the arresting officer isn't trained in drug recognition, a California DUI of drugs attorney may be able to convince the judge to exclude testimony about your alleged drugged impairment. Without that testimony, your charges would likely be reduced, if not entirely dismissed.

• The DRE's Testimony

  Part of the DRE's training includes lessons on how to testify in court. The local city or district attorney's office works with these officers to ensure they know how to testify persuasively. As a result, the DRE comes across very professional and polished.

  The DRE's testimony comprises the bulk of the prosecution's case. The DRE will begin by testifying, at length, about his/her training and qualifications that make him/her an "expert" in drug recognition. The DRE will also testify about his/her three major responsibilities:

  1. Confirming that your impairment wasn't consistent with your BAC,
  2. Confirming that you were under the influence of drugs and not suffering from a medical condition, and
  3. Concluding that you were under the influence of one or more specific "categories" of drugs.

  The DRE will testify, in detail, about the 12-step process noted above. Steps 11 and 12 are critical to the prosecution and will be emphasized. Step 11 is where the DRE states what category of drugs he/she believes you were impaired by. Step 12 ultimately reveals what drugs were in your system on the date you were arrested.

  Under step 11, the DRE will indicate whether you were impaired by:

  1. A central nervous system depressant (such as valium, soma or vicodin)
  2. PCP,
  3. Marijuana,
  4. A central nervous system stimulant (such as amphetamines, cocaine or methamphetamine " crystal meth"),
  5. A hallucinogen (such as LSD, ecstacy "X", or mushrooms "shrooms"),
  6. A narcotic analgesic (such as heroin, codeine or vicodin),
  7. GHB, otherwise known as the "date rape" drug, or
  8. Another drug not contained in one of these categories.

  Under step 12, the toxicology screen lists the drugs that were "detected" in your system. The screen typically doesn't reveal the amount of drugs detected, just whether you tested positive or negative for their presence.

How Do I Defend Against a California DUI of Drugs Charge Under California Vehicle Code 23152(a)?

There are a number of California DUI defenses that may be applicable to any DUI, whether alcohol- or drug-related. These types of defenses will always be explored by a California DUID defense attorney.

These defenses include:

• Challenging the "probable cause" that was used to initiate your traffic stop,
• Finding out whether you were properly advised of your "right to remain silent" before you were interrogated, and
• Questioning the procedures that were used to collect and store your breath, blood and/or urine samples.

With respect to a California drugged driving case, specific defenses exist that your California DUID lawyer may additionally argue:

• Having drugs in your system doesn't mean you're "under their influence"

This is, perhaps, the biggest defense to a California DUID case. As previously mentioned, the toxicology screen typically reveals a drug's presence, not its quantity.

When levels can be detected, many prosecution criminalist expert witnesses won't even testify about those levels. because there is no scientific correlation between drug amount and one's impairment.as tolerance and individual variation play a big role in that determination.

"Tolerance" is when the body builds up immunity to drugs or alcohol. Someone who regularly uses a particular drug will need more of the drug to feel the same effects as someone who rarely uses the same drug.

Drugs all have different life spans that range from hours to months, depending on different factors. Your

• Height,
• Weight,
• Metabolism, and
• Tolerance

all affect how long you will be under the influence of a drug and how long it will remain in your system.

Example: John is stopped by Officer Bill for speeding on the Ventura Freeway. Since the results of John's breath test don't confirm Officer Bill's suspicion that John is DUI of alcohol, he requests a DRE. The DRE determines that Bill is under the influence of marijuana.

Although John appeared a "bit out of it", he hadn't used marijuana in several days.he was just emotionally and physically exhausted. The results of his blood test, however, confirmed he had marijuana in his system, which supported the prosecution's theory that he was DUI of marijuana. But,

John's Van Nuys DUID defense lawyer would call an expert to testify that marijuana can remain in a person's body anywhere from five days to six months, depending on how frequently the person uses. He might also testify that the evidence linking marijuana to driving impairment is insignificant.¹

• "Innocent explanations" can mimic drug impairment

Despite the fact that the arresting officer and DRE testified that you displayed signs of impairment, a California DUID attorney can challenge that testimony. For example:

• Fatigue,
• Allergies,
• Sickness,
• Certain medical conditions, and
• Nerves

are all innocent explanations that might justify your appearance.all issues that have nothing to do with drug impairment.

Nystagmus (the involuntary jerking of the eye) naturally occurs in a certain percentage of the population. Pupil size changes because of nerves, excitement, darkness, and light. Poor balance may be due to an old injury.

Referring back to John's example above -- John had been having a very rough time at home (his mother was terminally ill, and he was going through a divorce). His sheer exhaustion was mistaken for impairment.

The bottom line is this.potentially damaging testimony can always be challenged!

• Chemical test results aren't always accurate

Like anything else, blood and urine test results are subject to numerous errors:

• Contaminated medical equipment,
• Improper blood draws (poorly trained flabotomists),
• Improper storage of the samples, and/or
• Improper handling of the samples may invalidate the test results.

As John Murray, one of Los Angeles's top DUI attorneys states, "California drugged driving cases have inherent problems, since there is no "scientific" way to prove that someone is under a drug's influence. I've seen many people wrongly arrested for this crime based on overzealous officers, erroneous test results, and the mistaken belief that a drug's presence is necessarily indicative of impairment."

What are the Penalties and Punishment that I Face if Convicted of DUID under California Vehicle Code 23152(a)?

There is no easy way to answer this question, since California DUID sentencing varies a great deal. Factors such as (1) whether you have prior DUIs, (2) the circumstances of your case, and (3) your criminal history will determine your punishment.

The following are guidelines for a "straight forward" first-time DUID offense:

• Three to five years of informal probation,
• A minimum $390 fine (which, after penalties and assessments will well exceed $1,000),
• A maximum of one-year in a county jail,
• A court-imposed driver's license suspension for at least six months,
• A minimum three-month drug education class.

There are two additional points regarding DUID penalties and sentencing that must be addressed:

1. If you agree to take a breath test but then refuse to submit to a blood or urine test, the DUI prosecutor may charge you with "refusing" to submit to a chemical test. A "refusal" adds a mandatory county jail sentence of at least 48 hours.
2. If you are DUI of a specific drug prohibited under California Health and Safety Code 11550, you may additionally be charged with that offense as well. Examples of these drugs include (but are not limited to) cocaine, heroin, "meth," GHB, and PCP.

California Health and Safety Code 11550 requires a mandatory 90-day minimum county jail sentence. However, unlike driving under the influence of drugs, this charge allows a first-time offender to participate in a drug diversion program under California Penal Code 1000 in lieu of that jail sentence.

If you would like more information or would like to discuss your case in confidence, we invite you to contact us at one of our conveniently located Southern California local DUI law offices.

Additional Resources and References:

Narcotics Anonymous:
Provides a recovery process and support network to help recovering drug addicts. Classes are free and non-denominational.

¹ Robbe HWJ, Marijuana Use and Driving (1994)

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