California Vehicle Code 23152(a) makes it a crime to
drive under the influence of
- alcohol and/or
California law defines "drugs" as any substance other than alcohol that could affect your nervous system, brain or muscles.2 You drive under the influence of drugs when those drugs impair you to the point that you can no longer drive like a sober person under similar circumstances.3
Driving under the influence of any drug subjects you to prosecution, regardless of whether they are
- illicit drugs such as cocaine,
- prescription drugs such as vicodin, or
- over-the-counter drugs such as diphenhydramine (in Tylenol PM)
An investigation...and subsequent prosecution...for driving under the influence of drugs "DUID" differs from a DUI involving alcohol. Most often, the roadside investigation is led by a drug recognition expert "DRE" who is trained to identify drug impairment.
And unlike an alcohol-related DUI where you are cannot drive with a blood alcohol concentration "BAC" of 0.08% or greater, there is no "magic number" in a DUID case that defines excessive blood toxicity. As a result, a DUI of drugs case can be difficult for the prosecutor to prove.
DUI of drugs is a misdemeanor in California. But the offense can be filed as a felony if
- it's your fourth or subsequent DUI offense,
- you have even one prior felony DUI conviction, or
- your driving causes an accident that injures a third party
The penalties for driving under the influence are usually the same regardless of whether the intoxicating substance is alcohol or drugs. But the penalties can increase exponentially if it is a second, third or subsequent offense and if any aggravating circumstances accompany the crime.
The penalties for a "typical" DUID conviction include:
- DUI probation for 3 to 5 years,
- fines (usually around $1800 for a first offense),
- completion of a California DUI school,
- a driver's license suspension.
- a possible jail sentence depending on the county where it happens, your prior record and the circumstances.
∗You can find more specific information in our related article on California DUI penalties.
∗If you can negotiate the charge down to a reckless driving or exhibition of speed, it could be possible to avoid all of these penalties.
∗If the evidence reveals that 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 law4, you could face prosecution for this offense as well.
- the fact that just because you had drugs in your system does not necessarily mean that you were under their influence,
- "innocent" physical conditions such as exhaustion or anxiety are often mistaken as the symptoms of drug impairment, and
- the fact that collection, storage and/or analysis of blood or urine samples are frequently out of compliance with California's Title 17 procedures (the procedures that regulate these acts).
In the article below, our California DUI defense attorneys5 provide an in-depth overview on what to expect during a "driving under the influence of drugs" investigation, prosecution and defense by addressing the following:
If after reading this article you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Driving Under the Influence; Vehicle Code 23152(a); Vehicle Code 23152(b); Understanding Your Blood Alcohol Concentration (BAC); Field Sobriety Tests (FSTs); Horizontal Gaze Nystagmus (HGN); The Romberg Balance Test; The Walk and Turn Test; The One Leg Stand Test; The Finger to Nose Test; Chemical DUI Blood Tests; California DUI Defenses: Fighting Your DUI; The Probable Cause Required to Initiate a DUI Investigation; Miranda Rights; California Title 17 Procedures; DUI Causing Injury; DUI Probation; DMV Driver's License Suspensions; California DUI School; California DUI Penalties; Refusing to Submit to a DUI Chemical Blood or Breath Test; Health and Safety Code 11550 California's "Being" Under the Influence Law; Penal Code 1000 PC Drug Diversion; Proposition 36; California Drug Court; PCP; Marijuana; Cocaine; Methamphetamines; Ecstasy "X"; Heroin; Codeine; Vicodin; and GHB, Otherwise Known as the Date Rape Drug.
California Vehicle Code 23152(a) VC not only prohibits driving under the influence of alcohol, but also driving under the influence of drugs. "Drugs" are any substance or combination of substances, other than alcohol, which could affect your
- nervous system,
- brain, or
You drive under the influence of drugs (DUID) when "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."7
It doesn't matter whether the drugs were
- illegal (such as in a driving under the influence of marijuana case),
- prescription (such as in a driving under the influence of Vicodin case or a driving under the influence of Ambien case, or
- even over-the-counter (such as in a driving under the influence of diphenhydramine case).
The only issue in a California DUID is whether the drugs affected your ability to drive your car safely. 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.8
Unlike Vehicle Code 23152(b) California's law against driving with a blood alcohol concentration (BAC) (DUI - BAC) of 0.08% or greater,9 a DUI of drugs charge has no quantitative threshold that dictates when you are "under the influence." Consequently the prosecution relies heavily on the observations of the arresting officer and the testimony of expert witnesses.
Despite the fact that Vehicle Code 23152a applies to alcohol and drugs, driving under the influence of drugs is prosecuted and defended quite differently than driving under the influence of alcohol.
A California "DUI with drugs" investigation typically begins when the patrol officer notices that you appear to be intoxicated, yet there is little or no evidence that you drank alcohol. So the officer suspects you must be on drugs. When this is the case, the police will usually call a drug recognition expert (DRE) to come to the scene to evaluate you.
A drug recognition expert (DRE) is a law enforcement officer with special training that helps him/her identify when a DUI suspect is under the influence of narcotics. The DRE program started in the Los Angeles Police Department (LAPD) and is now run by the California Highway Patrol (CHP). Law enforcement agencies throughout the country currently use this program.
In California, the DRE takes over the DUI investigation once he/she arrives. The DRE conducts a 12-step evaluation that includes:
- confirming that your BAC isn't indicative of someone who is under the influence of alcohol,
- interviewing the arresting officer,
- conducting a preliminary examination, which includes checking your pulse rate,
- conducting an eye exam or "tracking exam" to see if you have
horizontal gaze nystagmus (HGN) which is an involuntary "jerking of the eye" that...if present at a certain level...indicates drug and/or alcohol consumption,
- re-administering the field sobriety tests (FSTs), including the
- taking your vital signs and re-checking your pulse rate,
- conducting a dark room exam of your pupil size and checking your nose and mouth traces of drug ingestion,
- evaluating your muscle tone (as certain drugs can cause muscles to become rigid or flaccid),
- checking for injection sites and taking a third pulse rate,
- questioning you about your alleged drug use and otherwise observing your behavior,
- forming an opinion as to what type of drug(s) is/are causing your impairment, and
- asking you to submit to a chemical DUI blood test and/or urine test.
The DRE's evaluation ideally takes place in a well-lit, controlled area (for example, at a police station), rather than on a roadside where a typical DUI investigation takes place.
Similar to that of an alcohol-related DUI trial, a DUID trial begins with the arresting officer testifying about why he perceived you to be impaired...
- the unsafe manner in which you drove,
- your physical appearance, and
- your performance on the field sobriety tests.
The bottom line is that everything you did "wrong" will be highlighted for the judge and jury.
The arresting officer almost invariably testifies 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 and symptoms of intoxication." These include:
- red and watery eyes,
- slurred speech,
- a flushed face, and
- an "unsteady gait".
The officer will further testify that you "failed to perform your FSTs as explained and demonstrated."
Unlike a DUI involving alcohol, the prosecutor usually doesn't have a "failed" breath test reading to corroborate this testimony. If the officer administered a roadside breathalyzer test, it may have shown little or no blood alcohol level. The officer will testify that since alcohol could not account for the symptoms of impairment, he suspected it must therefore be drugs...which is why he/she requested a DRE to check for drug impairment.
∗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 defense attorney who specializes in driving under the influence cases 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.
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 testify persuasively. As a result, the DRE usually 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:
- confirming that your level of impairment wasn't consistent with your
blood alcohol concentration,
- confirming that you were under the influence of drugs and not suffering from a medical condition, and
- 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 under Section 2.1. What is a drug recognition expert? Steps 11 and 12 are critical to the prosecution and...consequently...the prosecutor will ask the DRE to emphasize these points. Step 11 is where the DRE states what category of drugs he/she believes impaired you. Step 12 ultimately reveals what drugs were in your system based on the blood or urine tests.
Under step 11, the DRE will usually indicate whether you were impaired by:
- a central nervous system depressant (such as valium or soma)
- a central nervous system stimulant (such as amphetamines, cocaine or methamphetamines ("meth"),
- a hallucinogen (such as LSD, ecstasy "X", or mushrooms "shrooms"),
- a narcotic analgesic (such as heroin, codeine or Vicodin),
- GHB, otherwise known as the "date rape" drug, or
- any other 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.
Because parts of the blood sample are preserved, either the prosecution or defense can later have a "quantitative analysis" performed. This test looks for the amount of the drug in the bloodstream...a clue as to whether it was likely or not to be sufficient in quantity to cause impairment.
Our law firm conducts these further blood analyses (called "blood splits") in virtually every DUI of drugs case. We have the blood split done by an independent analyst at an independent laboratory. Many times these reveal very little of the drug metabolites were in the client's bloodstream...not enough to be likely to cause impairment.
There are a number of general California DUI defenses that may apply to any DUI, whether alcohol- or drug-related. These types of defenses should always be explored by a California DUID defense attorney in an effort to fight your DUI.
These defenses include:
- challenging the "probable cause" that was used to initiate your DUI stop,
- finding out whether you were properly advised of your "right to remain silent" and other Miranda rights before you were interrogated, and
- questioning whether the police followed the correct
California Title 17 procedures that regulate the collection, storage and analysis of your breath, blood and/or urine samples.
With respect to a California drugged driving case, there are specific defenses that your California DUID lawyer is also likely to argue. The following are some common examples.
Having drugs in your system doesn't necessarily mean that you're "under their influence"
This is, perhaps, the strongest defense in a California DUID case. As previously mentioned, the toxicology screen typically reveals a drug's presence, not its quantity.
When drug levels are detected, many prosecution criminalist expert witnesses won't even testify about those levels. This is because there is no scientific correlation between the quantity of a drug in one's system and one's impairment, as tolerance is specific to every individual.
"Tolerance" is when the body builds up immunity to drugs or alcohol. Someone who regularly uses a particular drug will need more of that 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 a wide range of factors. Your
- metabolism, and
all affect how long you will be under the influence of a drug and how long it will remain in your system.
Example: Officer Bill pulls John over for speeding. After speaking with and observing John, Officer Bill initiates a DUI investigation. At the conclusion of the investigation, the results of John's breath test don't confirm Officer Bill's suspicion that John is under the influence of alcohol. So Officer Bill requests a DRE. The DRE determines that Bill was driving under the influence of marijuana
Although John does appear a "bit out of it," he actually hadn't used marijuana in several days...he was just emotionally and physically exhausted. The results of his blood test, however, confirmed that he had the presence of marijuana in his system.
Fortunately, John's California DUID defense lawyer knows to call an expert witness 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 it. John's attorney also elicits testimony that evidence linking marijuana to driving impairment is insignificant.10
"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 almost always challenge that testimony. Physical conditions such as
- injury, and
are all innocent explanations that might explain your appearance...and are all conditions that have nothing to do with drug impairment.
And even recognized signs of impairment could have innocent explanations that are unrelated to drug use. For example
- nystagmus (which is the involuntary jerking of the eye) naturally occurs in a certain percentage of the population
- Pupil size is affected by nerves, excitement, darkness, and light
- Poor balance may be due to an old injury, inner ear disorders or footwear (such as steel boots or high heels)
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...a skilled California DUI defense attorney can challenge just about anything the prosecution throws at him!
Chemical test results aren't always accurate
Even when a urine or blood test comes back positive, DUI chemical tests are always subject to error.
- Contaminated medical equipment,
- improperly drawn blood,
- improper storage of the samples, and/or
- improper handling of the samples
may invalidate the test results.
According to attorney John Murray11, who defends DUI cases at the Los Angeles Metropolitan Courthouse, "California drugged driving cases present inherent problems for the prosecution, 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. Fortunately, my associates and I know the most persuasive arguments to convey this information to prosecutors, judges and juries."
California DUI penalties vary a great deal. Factors such as
- whether you have prior DUIs,
- the circumstances of your case (for example, were you involved in a
DUI causing injury and
- your criminal history
will determine your punishment. That said, most first, second and third instances of driving under the influence of drugs are misdemeanors. Fourth and subsequent offenses are typically charged as felony DUI.
The following are the guidelines for a "straight forward" first-time misdemeanor DUID offense:
- three to five years of informal DUI probation,
- a minimum $390 fine (which, after penalties and assessments is more like $1800),
- a maximum of six months in a county jail, although most counties don't impose jail time on first offense cases with no aggravating factors
- a DMV driver's license suspension for at least six months, and
- a minimum three-month drug education class, known as
California DUI school.12
The penalties for second and subsequent DUID offenses are outlined in our article discussing California DUI Penalties They, too, typically include fines, probation, and DUI school but also include a longer driver's license suspension and a mandatory jail sentence that automatically increase with each subsequent DUI conviction.
There are two additional points regarding DUID penalties and sentencing that should be noted:
- 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," if sustained, adds a mandatory county jail sentence of at least 48 hours and a minimum one-year driver's license suspension.13
- If you are DUI of one of the specific drugs listed in
Health and Safety Code 11550 California's under the influence of a controlled substance law,14 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 HS 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. These programs allow the person to do a drug program in lieu of jail and ultimately get the case dismissed. California diversion programs include
However, DUI charges generally make people ineligible for the diversions programs. So to take advantage of this type of alternative sentence, your defense attorney would have to convince the prosecutor and/or judge to dismiss the DUI charge.15
Call us for help...
For questions about California "driving under the influence of drugs" charges, or to discuss your case confidentially with one of our California DUI defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
And if you're facing DUI of drug (DUID) charges in Nevada,16 our Las Vegas Nevada DUI attorneys are here to help. The primary distinction between driving under the influence of drugs in Nevada and California rests in the fact that Nevada's DUID law not only prohibits driving "under the influence" of drugs, but also driving with a specific quantity of a drug in your system. Fortunately, skilled Nevada DUI attorneys know the most persuasive arguments to convince prosecutors to dismiss or reduce DUID charges. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.17
Call us for help
If you or loved one is charged with DUI of drugs and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additional Resources and References:
Provides a recovery process and support network to help recovering drug addicts. Classes are free and non-denominational.
1 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.")
2 California Jury Instructions, 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].)"
3 CALJIC 16.831 -- Alcohol or Drug Influenced Driving-"Under the Influence"-Defined. ("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.]")
4 Health and Safety Code 11550 HS California's "using and/or being under the influence" law. ("(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.")
5 Our California DUI defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
6 California Jury Instructions, Criminal CALJIC 16.830 -- Misdemeanor Driving Under the Influence, endnote 2, above.
7 CALJIC 16.831 -- Alcohol or Drug Influenced Driving-"Under the Influence"-Defined, endnote 3, above.
8 CALJIC 16.632 -- Alcoholic or Drug Influenced Driving-Under the Influence Relates to Condition of Driver. ("The manner in which a vehicle is being driven is not sufficient in itself to establish that the driver of the vehicle either is or is not [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] [addicted to the use of a drug]. However, the manner in which the vehicle is being driven is a factor to be considered in light of all the proved surrounding circumstances in deciding whether the person operating the vehicle was or was not [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] [addicted to the use of a drug].")
9 Vehicle Code 23152 California's Driving under the Influence Law. ("(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.")
11 John Murray, one of Los Angeles's top DUID defense attorneys represents clients throughout Los Angeles and San Bernardino.
12 Vehicle Code 23536 VC -- Conviction of first violation of § 23152; punishment. ("(a) If a person is convicted of a first violation of Section 23152, that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, nor more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1,000). (b) The court shall order that a person punished under subdivision (a), who is to be punished by imprisonment in the county jail, be imprisoned on days other than days of regular employment of the person, as determined by the court. If the court determines that 48 hours of continuous imprisonment would interfere with the person's work schedule, the court shall allow the person to serve the imprisonment whenever the person is normally scheduled for time off from work. The court may make this determination based upon a representation from the defendant's attorney or upon an affidavit or testimony from the defendant. (c) The person's privilege to operate a motor vehicle shall be suspended by the department under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (d) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1, the court may disallow the issuance of a restricted driver's license required under Section 13352.4.")
See also Vehicle Code 23538 VC -- Conditions of probation for first time offense. ("(a)(1) If the court grants probation to person punished under Section 23536, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as a condition of probation that the person pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). The court may also impose, as a condition of probation, that the person be confined in a county jail for at least 48 hours, but not more than six months. (2) The person's privilege to operate a motor vehicle shall be suspended by the department under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (3) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1, the court may disallow the issuance of a restricted driver's license required under Section 13352.4. (b) In any county where the board of supervisors has approved, and the State Department of Alcohol and Drug Programs has licensed, a program or programs described in Section 11837.3 of the Health and Safety Code, the court shall also impose as a condition of probation that the driver shall enroll and participate in, and successfully complete a driving-under-the-influence program, licensed pursuant to Section 11836 of the Health and Safety Code, in the driver's county of residence or employment, as designated by the court. For the purposes of this subdivision, enrollment in, participation in, and completion of an approved program shall be subsequent to the date of the current violation. Credit may not be given for any program activities completed prior to the date of the current violation. (1) The court shall refer a first offender whose blood-alcohol concentration was less than 0.20 percent, by weight, to participate for at least three months or longer, as ordered by the court, in a licensed program that consists of at least 30 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code. (2) The court shall refer a first offender whose blood-alcohol concentration was 0.20 percent or more, by weight, or who refused to take a chemical test, to participate for at least nine months or longer, as ordered by the court, in a licensed program that consists of at least 60 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code. (3) The court shall advise the person at the time of sentencing that the driving privilege shall not be restored until proof satisfactory to the department of successful completion of a driving-under-the-influence program of the length required under this code that is licensed pursuant to Section 11836 of the Health and Safety Code has been received in the department's headquarters. (c)(1) The court shall revoke the person's probation pursuant to Section 23602, except for good cause shown, for the failure to enroll in, participate in, or complete a program specified in subdivision (b). (2) The court, in establishing reporting requirements, shall consult with the county alcohol program administrator. The county alcohol program administrator shall coordinate the reporting requirements with the department and with the State Department of Alcohol and Drug Programs. That reporting shall ensure that all persons who, after being ordered to attend and complete a program, may be identified for either (A) failure to enroll in, or failure to successfully complete, the program, or (B) successful completion of the program as ordered.")
13 California Vehicle Code 23578 -- DUI punishments. Conviction of violation of Vehicle Code 23152 or 23153; alcohol concentration or refusal to take chemical test as special factor; penalty enhancement or probation. ("In addition to any other provision of this code, if a person is convicted of a violation of vc 23152 or vc 23153, the court shall consider a concentration of alcohol in the person's blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.")
See also California Vehicle Code 13353 VC -- Chemical blood, breath, or urine tests. ("(a) If a person refuses the officer's request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer's sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following: (1) Suspend the person's privilege to operate a motor vehicle for a period of one year [pursuant to a DUI DMV hearing]. (2) Revoke the person's privilege to operate a motor vehicle for a period of two years if the refusal occurred within 10 years of either (A) a separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, that resulted in a conviction, or (B) a suspension or revocation of the person's privilege to operate a motor vehicle pursuant to this section or Section 13353.2 for an offense that occurred on a separate occasion. (3) Revoke the person's privilege to operate a motor vehicle for a period of three years if the refusal occurred within 10 years of any of the following: (A) Two or more separate violations of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, or any combination thereof, that resulted in convictions. (B) Two or more suspensions or revocations of the person's privilege to operate a motor vehicle pursuant to this section or Section 13353.2 for offenses that occurred on separate occasions. (C) Any combination of two or more of those convictions or administrative suspensions or revocations. The officer's sworn statement shall be submitted pursuant to Section 13380 on a form furnished or approved by the department. The suspension or revocation shall not become effective until 30 days after the giving of written notice thereof, or until the end of a stay of the suspension or revocation, as provided for in Section 13558. (D) For the purposes of this section, a conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23103, as specified in Section 23103.5, or Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, is a conviction of that particular section of the Vehicle Code or Penal Code. (b) If a person on more than one occasion in separate incidents refuses the officer's request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612 while driving a motor vehicle, upon the receipt of the officer's sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, the department shall disqualify the person from operating a commercial motor vehicle for the rest of his or her lifetime. (c) The notice of the order of suspension or revocation under this section shall be served on the person by a peace officer pursuant to Section 23612. The notice of the order of suspension or revocation shall be on a form provided by the department. If the notice of the order of suspension or revocation has not been served by the peace officer pursuant to Section 23612, the department immediately shall notify the person in writing of the action taken. The peace officer who serves the notice, or the department, if applicable, also shall provide, if the officer or department, as the case may be, determines that it is necessary to do so, the person with the appropriate non-English notice developed pursuant to subdivision (d) of Section 14100. (d) Upon the receipt of the officer's sworn statement, the department shall review the record. For purposes of this section, the scope of the administrative review shall cover all of the following issues: (1) Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153. (2) Whether the person was placed under arrest. (3) Whether the person refused to submit to, or did not complete, the test or tests after being requested by a peace officer. (4) Whether, except for a person described in subdivision (a) of Section 23612 who is incapable of refusing, the person had been told that his or her driving privilege would be suspended or revoked if he or she refused to submit to, or did not complete, the test or tests. (e) The person may request an administrative hearing pursuant to Section 13558. Except as provided in subdivision (e) of Section 13558, the request for an administrative hearing does not stay the order of suspension or revocation. (f) The suspension or revocation imposed under this section shall run concurrently with any restriction, suspension, or revocation imposed under Section 13352, 13352.4, or 13352.5 that resulted from the same arrest.")
14 Health and Safety Code 11550 HS California's "using and/or being under the influence" law, endnote 4, above.
15 People v. Canty (2004) 32 Cal.4th 1266, 1281. ("The purpose and intent expressed in the preamble to these statutes tends to reinforce the conclusion that misdemeanor driving while under the influence of drugs is not an activity similar to the conduct that underlies those misdemeanors that merely involve personal interaction with drugs, described in section 1210, subdivision (d). As explained more fully below, the statutes that prohibit driving while under the influence of drugs contemplate graduated levels of incarceration as well as other restrictions, such as suspension or revocation of a drivers license, and thus do not appear to be "simple" offenses for purposes of the probation and diversion statutes.")
17 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's driving under the influence of drugs law. Our Nevada law offices are located in Reno and Las Vegas.