Driving Under the Influence of Drugs

Driving under the influence of drugs (DUID) is specifically covered under California Vehicle Code §23152 (f). According to this statute, a driver is driving under the influence of drugs when the driver can no longer drive like a sober person under similar circumstances due to:

• any drug, whether illegal, prescription, or over the counter, OR
• combination of drugs and alcohol

DUID as a Misdemeanor

A DUID is usually charged as a misdemeanor in California. The penalties are the same with a misdemeanor DUI of alcohol. The penalties can include:

• 3 to 5 years of probation
• Fines up to $1800 for a first offense
• Mandatory alcohol or drug education program (DUI school)
• Driver’s license suspension
• Possible time in jail

DUID as a Felony

DUID can be charged as a felony when:

• The defendant already has one prior felony DUI conviction[1]
• The defendant has committed DUI four or more times[2]
• The DUI caused injury to a third party[3]

A felony DUID is penalized by:

• up to 3 years in county jail (4 years if a third party was injured), AND/OR
• A fine of up to $1000 (up to $5000 if someone was injured as a result of the DUID)

To help give you a better understanding of DUIDs, our DUI defense attorneys will discuss some important matters to know in the following article.

1. Driving Under the Influence of Drugs

Two laws under the California Vehicle Code deal with DUI of drugs, particularly:

• California Vehicle Code §23152 (f), DUI of drugs
• California Vehicle Code §23152 (g), DUI of drugs and alcohol

2. “Drugs” as Defined Under California Law

According to California law, drugs are a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.

Under this definition, “drugs” include illegal drugs (methamphetamines, cocaine, heroin, etc.), legal drugs (cannabis), prescription medication, and other over the counter prescription medication.

Drugs Commonly Associated with DUID

The following are several drugs that are most commonly linked with DUID arrests:

• Marijuana
• Prescription drugs such as Oxycontin
• Methamphetamines
• Ambien

However, take note that any medication that can affect a person's brain, nervous system, muscles, etc. can be considered as a "drug" for purposes of a DUI, even if it is a legally prescribed medication.

3. Legal Limit

When it comes to DUI of alcohol, California law sets the legal limit to a BAC of 0.08%. However, when it comes to DUI of drugs, there is no such thing as a legal limit and even the slightest amount in a person's system can constitute a DUID. This is because there is no way to determine with certainty which drug concentration level causes driving impairment.[4]

Therefore, California law makes it illegal to drive while:

• Under the influence of drugs[5]
• While under the influence of drugs and alcohol[6]
• While addicted to any drugs (unless receiving treatment for the addiction under an approved program)[7]

4. DUID Arrest

Similar to a DUI of alcohol arrest, it typically starts with a traffic stop. After the police make contact with the driver, if the police observe physical signs of impairment, a DUI investigation will begin. During the investigation, the officer may do the following:

• Ask questions regarding alcohol use or drug use
• Conduct a preliminary alcohol screening test through a breathalyzer
• Ask the driver to participate in a few field sobriety tests
• Observe the driver for other physical manifestations of impairment
• Inspect to see if there are any drugs or drug paraphernalia in the vehicle

If the driver appears to be within the legal limit after the breath test, the officer might suspect the driver to be under the influence of drugs. The officer might then call for a drug recognition expert (DRE) to go to the scene to evaluate the driver. The officer might also ask the driver to take a mouth swab test to check for any drugs in the driver’s system.

5. Drug Recognition Experts

Drug recognition experts or DREs are law enforcement officers who are specially trained to identify persons who are under the influence of drugs.

DREs are currently under the California Highway Patrol. However, not all counties have DREs so they might not be called in depending on where a driver was arrested.

DREs and the 12-Step Drug Impairment Evaluation

Once a DRE has been called onto the scene, they will now take over the DUI investigation. The DRE will conduct a 12- step evaluation to determine if a driver is indeed under the influence of drugs and this may include the following:

• The DRE will confirm that the BAC of the driver is not above the legal limit
• They will interview the arresting officer for more particular details about the case at hand
• DRE will check the driver’s symptoms to check for possible drug use (pulse rate, pupil size, drug traces in the mouth or nostrils, muscle tone, and “track marks” for possible injection sites)
• The DRE will also conduct an eye-tracking check similar to the horizontal gaze nystagmus used in field sobriety tests
• The DRE will readminister the other field sobriety tests
• The DRE will ask the driver about drug use
• The DRE can ask the driver to submit to a blood test or urine test

Ideally, the DRE will conduct their examination in a well-lit area such as the police station. The DRE will then form an opinion on whether the driver is possibly under the influence of drugs.

Driver’s Rights During a DRE Investigation

A driver may exercise their fifth amendment right during the DREs investigation. This means a driver does not have to answer the DRE's questions or submit to further field sobriety tests conducted by the DRE.

Take note that there are no negative consequences for refusing to take a chemical test before an arrest. However, once a person has been arrested, refusing to submit to a chemical test could lead to increased penalties and mandatory driver's license suspension. However, a driver will always be required to take a chemical test, even before arrest, if the driver is:

• Currently on DUI probation
• Under the age of 21

6. DUID Arrest

The officer will arrest the driver once the officer has cause to believe that the driver was driving under the influence. At this point, the arresting officer does not necessarily need to read to the driver their Miranda rights. The reading of Miranda rights is only imperative when the driver is under custodial investigation. Custodial investigation means that:

• The driver is already in custody and cannot freely leave
• The police ask the driver questions intended to elicit an incriminating answer

Chemical Testing for Alcohol or Drugs

After being arrested, normally the driver is given the option to choose between taking a breath test or a blood test. Refusing to take any of these tests will constitute a "chemical test refusal" and could lead to increased penalties and mandatory driver's license suspension. The reason for this is because a person that has already been legally arrested cannot refuse to take a chemical test.

Blood Test

Under certain circumstances, a person can be legally required to take a blood test even after taking a post-arrest breath test. This can happen when:[8]

• The officer has reasonable cause to believe that the driver was under the influence of drugs or a combination of drugs and alcohol
• The officer has a clear indication that a blood test will reveal evidence of the person being under the influence

Normally, when a driver elects to take a breath test and the test reveals a BAC of 0.08% or above, the driver will be charged with any of the following:

• Violation of Vehicle Code §23152 (a)
• Violation of Vehicle Code §23152 (b) – BAC of 0.08% or above
• Violation of Vehicle Code §23152 (d) – commercial vehicle DUI with BAC of 0.04% or higher
• Violation of Vehicle Code §23152 (e) – taxi, limo, or ridesharing driver with BAC of 0.04% or higher
• Violation of Vehicle Code §23140 – underage DUI with BAC of 0.05% or higher

However, if the driver reveals a BAC of below 0.08% after the post-arrest breath test, the officer can then order for a blood test. However, it is important to remember that a person's blood cannot be taken without the person's consent unless there is a warrant ordering for that person to provide a blood sample.[9]

7. Blood Test as Used in a DUID Case

The blood sample taken from an arrested driver will be screened by a laboratory for any possible drugs.

The test results will not reveal the concentration of individual drugs that were detected during the lab test. It will simply indicate whether or not the blood sample tested positive or negative for certain drugs.

If the test reveals multiple drugs in the blood sample, the lab will then conduct a quantitative test to determine the concentration of the different drugs detected. As mentioned earlier, the amount of drug concentration does not matter when it comes to a DUID. What matters is that the sample tested positive for certain drugs.

Positive Blood Test

Even though blood tests results are not conclusive, the prosecution can still use the results to show:

• Drugs were present in the driver’s system
• How much drugs were present
• In some cases, the range of time when the drugs were taken

However, these things will not be considered conclusive on the level of impairment. Therefore, the prosecution will still rely heavily on the observations of the arresting officers, the DRE, and expert witness testimony.

8: The DUID Trial

8.1: Arresting Officer Testimony

The DUID trial will initiate with a testimony from the arresting officer. The arresting officer will indicate why they perceived the driver to be impaired. These may include statements on what the officer observed such as:

• Unsafe manner of driving
• Physical symptoms indicating intoxication or drug-related effects
• Performance on the field sobriety tests and manner of interaction with the officer

Usually, the arresting officer will testify that the defendant was not “driving with the caution characteristic of a sober person.” The officer will also usually say that the driver was exhibiting “objective signs and symptoms of intoxication” such as red and watery eyes, slurred speech, flushed face, unsteady gait, etc.

Regarding the field sobriety tests, the officer will usually indicate that the driver failed to perform the field sobriety tests as explained and demonstrated.

Breath Test in a DUID Case

A breath test will usually be useless in a DUID case unless the driver also took alcohol with drugs. However, if the breath test showed a result within the legal limit, the officer will usually indicate that breath test results do not match the observed symptoms of intoxication, thus leading to a reasonable suspicion that the driver might be under the influence of drugs.

8.2 DRE Testimony

The DREs testimony is probably the most crucial in a DUID case for the prosecution side. Apart from identifying possible drug symptoms, DREs are also trained on how to testify in court. So the DREs will usually appear very credible during testimony.

The DRE will usually list off their trainings and qualifications. They will also testify on the following:

• Confirming that the impairment was caused by drugs
• Confirming that the symptoms exhibited were from drugs and not from a medical condition
• Making an assessment that driver was exhibiting symptoms from a specific kind of drug

The DRE will also testify in detail about the 12-step evaluation that they conducted on the driver. The DRE will usually focus on the matters that support their conclusion relating the driver to being under the influence of drugs. They will usually indicate which specific drugs cause certain effects and how this relates to their observations from the defendant driver.

Non-Presence of a DRE in Your Case

As mentioned previously not all counties have DREs. However, some officers receive training in drug detection.

However, without such specific training, proving drug influence is difficult. A skilled DUI defense attorney can file a motion to suppress any testimony relating to any alleged drug related impairment.

If this happens, there is a high likelihood of the charges being reduced via a plea bargain.

8.3 Blood Test Results

The prosecution will most certainly introduce the blood test results during the trial. The test results usually contain what drugs the driver tested positive for and in some cases, the concentration of these drugs as found in the blood sample.

An expert witness will then usually testify on the correlation between the concentration of drugs being consistent with studies showing impairment at those concentrations.

9. Possible Defenses

Several defenses apply both to a DUI of alcohol and DUID and specific defenses that only apply in DUID cases.

The following possible defenses are not limited to the following and could depend on the circumstances of each case. Consult with an experienced DUI defense attorney to discuss the particularities of your case.

9.1 General Defenses

• No Probable Cause for the traffic stop
• Miranda Rights were not read at an appropriate point
• Non-application or misapplication of California Code of Regulations Title 17

9.2 DUID Specific Defenses

Although drugs may be present in a driver’s system, this does not necessarily mean that a driver was driving under the influence. The reason for this is because there is no specific correlation between the concentration of drugs in the system to driving impairment.

People react differently to drugs and over time, drug tolerance is developed particularly if a drug is used regularly. This creates the odd situation where a person who uses a particular drug more often is less likely to be impaired by the drug taken.

“Detection Window”

The detection window is the length of time a particular drug will be retained in someone’s system. Usually, the detection window is much longer than the amount of time a person remains high.

The following is a detection window for some common drugs for blood and urine testing:[10]

Drug	Blood	Urine
Cannabis (Infrequent)	12-24 hours	1-7+ days
Cannabis (Regular Use)	2-7 days	7-100 days
Amphetamines	24 Hours	1-3 days
Cocaine	1-3 days	1-3 days
Opioids/Heroin	1-3 days	1-4 days
PCP	1-3 days	1-3 days

The detection window is affected by several factors such as weight, height, diet, metabolism, tolerance, method of ingesting, etc., and will vary greatly from one person to another.

Other Factors Mimicking Drug Impairment

There are a variety of reason why a person could be exhibiting physical symptoms of impairment that is completely not related or caused by drugs. This can include lack of sleep, fatigue, allergies, disease, pre-existing medical condition, injury, etc.

Accuracy of Chemical Test Results

Chemical Test results are not always accurate. This is the reason why part of the blood sample is reserved for independent testing by the defendant should they wish to challenge the results and have an independent laboratory to conduct testing.

Reasons such as contamination, improper blood draw, improper storage, and handling could severely affect the blood test results.

Blood Split Motions

As mentioned previously the defendant has an opportunity to challenge the blood test result by having an independent laboratory to conduct testing. The Defendant could do this by filing what is called a “blood split motion.”

This is done by requesting from the prosecution the remaining portion of the blood sample taken during the arrest. The arresting agency or whoever has custody of the blood sample will then send the sample to the defendant or directly to the independent laboratory chosen by the defendant to conduct testing.

Should the independent test results be unhelpful, the defense is not obligated to present these results in court. Meaning, they can be used in court if they are helpful and discarded if it does not help the defense's case.

10. Penalties

As mentioned previously, a DUID is usually charged as a misdemeanor. However, there are instances when it is charged as a felony. The penalties are the same with a misdemeanor DUI of alcohol. The penalties can include:

• 3 to 5 years of probation
• Fines up to $1800 for a first offense
• Mandatory alcohol or drug education program (DUI school)
• Driver’s license suspension
• Possible time in jail

DUID can be charged as a felony when:

• The defendant already has one prior felony DUI conviction[11]
• The defendant has committed DUI four or more times[12]
• The DUI caused injury to a third party[13]

A felony DUID is penalized by:

• up to 3 years in county jail (4 years if a third party was injured), AND/OR
• A fine of up to $1000 (up to $5000 if someone was injured as a result of the DUID)

10.1 Factors Determining DUID Sentence

• Defendant’s criminal history
• Circumstances surrounding the case
• Possible Injury to a Third Party
• If the defendant will benefit from a drug treatment program

10.2 No Drug Diversion for DUID

Drug diversion is not available for DUID. However, a skilled defense attorney might be able to convince the prosecutor to drop the DUID charge and instead charge the defendant to Health and Safety Code §11550, being under the influence of a controlled substance.

This will allow a first-time drug offender to participate in a drug diversion program such as that in:

• Penal Code 1000 for simple possession
• Proposition 36 drug diversion for non-violent offenders
• California Drug Court

In lieu of jail, the defendant is required to participate in a pretrial program of education and counseling. If the defendant successfully completes the program, the charges are dismissed and there will be no conviction record.

The downside of this arrangement is that if the defendant does not complete the diversion program, the defendant will be required to serve time in jail since Health and Safety Code §11550 carries with it a penalty of a maximum of one year in jail.

10.3 Chemical Test Refusal

As mentioned previously, if the driver refuses chemical testing post-arrest, may face automatic suspension of his or her driver’s license and a mandatory county jail sentence of 48 hours if the defendant is convicted of DUID.

It is difficult to challenge the driver's license suspension especially if this is the cause. However, refusing to take a chemical test may reduce the chances of the defendant getting convicted for a DUID considering that the presence of drugs is difficult to prove without any chemical testing.

10.4 Driving While Addicted to Drugs

California Vehicle Code §23152 (c) makes it illegal to drive while a person is addicted to any drug. The only exception to this rule is if the person is participating in an approved drug treatment program (although driving while high is still very much illegal).

This offense requires the prosecution to prove that the driver was addicted to drugs at the time of the arrest, and not just a casual user.

The prosecutor will tend to charge this offense instead if the DUID case is weak but the driver’s chemical tests show the presence of drugs.

10.5 Drug Use Possession Penalties

In addition to the DUID offense, a driver may also be charged with a violation of Health and Safety Code §11550, being under the influence of a controlled substance. If drugs or drug paraphernalia were found in the possession of the driver, he or she may be charged with Health and Safety Code §11350, possession of a controlled substance or Health and Safety Code §11364, possession of drug paraphernalia.

DUIDs Happen. Jail and Penalties Don’t Have To.

A DUID charge is a difficult thing to manage and navigate on your own. You will want to consult and secure the services of an experienced DUI defense attorney to assist you in navigating the legal complexities of these charges. You will want to avoid a conviction at all costs because it can have severe effects on your life. Although we are fielding inquiries from a lot of people in similar situations, we will do our best to put you in contact with an experienced lawyer from our firm.