Drugs impair an individual's driving ability. The risk posed to other motorists' lives, including the driver’s, is great. That is why it is an offense to drive under the influence of drugs (DUID). You will face DUID charges under Vehicle Code 23152(f) if you operate a vehicle after consuming an illicit or prescribed medication.
Driving under the influence of drugs is a misdemeanor offense, and convictions result in jail time, probation, and fines. With assistance from an experienced DUI attorney, you can challenge the charges to avoid the penalties or serve reduced sentences. Count on the Los Angeles Criminal Attorney for legal aid.
Driving Under the Influence of Drugs Under California Law
DUID charges follow an investigation and subsequent arrest by a police officer. Prosecutors then formally introduce the charges in court. Understanding the investigation and the trial process will help you better understand DUID.
The law defines drugs as any substance or a mix of substances other than alcohol that impacts an individual's brain, nervous system, or muscles, thus impairing his/her ability to drive as a reasonably cautious individual would.
An individual is deemed cautious if he/she can exercise reasonable care while driving.
From the legal definition of a drug, illegal, prescribed, and over-the-counter drugs will result in prosecution under Vehicle Code 23152(f) since both can impair a driver’s judgment.
Illegal drugs include ecstasy, heroin, cocaine, LSD, methamphetamines, and their metabolites.
Prescription drugs like Oxycodone, Vicodin, Oxycontin, and Ambien and over-the-counter medications like sleeping pills, cold medicine, or allergy medication like antihistamines coupled with driving could result in DUID charges. You will face DUID charges even if the drug is vital for your health.
Whereas the recreational use of marijuana is legal, driving after partaking in the drug is an offense under Vehicle Code 23152(f).
Additionally, you could face Vehicle Code 23152(g) violations for driving under the influence of drugs and alcohol.
How Police Build a DUID Case
The question of the legal limit in DUID cases is an ongoing conversation. As of yet, there is no per se legal limit for driving under the influence cases involving drugs, as is the case for driving under the influence cases involving alcohol. The National Highway Traffic Safety Administration (NHTSA) further stated that there is no reliable correlation between particular drug concentration levels and the effects on a driver’s performance.
Without a legal limit, police officers exercise enormous discretion in drug-related driving. In particular, drug recognition experts investigate drug use by the driver. Drug recognition experts (DREs) are police officers trained to recognize drug and alcohol impairment in drivers.
A DRE's investigations involve the following:
- Checking the driver’s vital signs — DREs will check your pulse rate, body temperature, and blood pressure. Additionally, he/she will check the driver’s pupil size, traces of drugs on the driver’s nostrils or mouth, and track marks on potential injection sites.
Muscle tone points to whether the driver is under the influence. Some drugs cause muscles to be flaccid or rigid.
- Noting any visible intoxication symptoms, including a flushed face, slurred speech, bloodshot eyes, and a driver’s admission of drug use.
- Conducting field sobriety tests — Officers will conduct a series of mental and physical examinations, field sobriety tests (FSTs), to determine a driver’s level of impairment. Standardized tests include:
- Walk and Turn tests (WAT)
- Eye tracking exams that check for Horizontal Gaze Nystagmus (HGN) — HGN refers to the involuntary jerking or shuttering of the eye, attributable to being under the influence of drugs, alcohol, or both and
- One-leg Stand tests
Non-standardized tests include:
- Finger count test
- Finger-to-nose test
- Rhomberg balance test, and
- Hand Pat field sobriety tests
- Performing a PAS (Preliminary Alcohol Screening) test, which is a roadside breathalyzer test, confirms an officer’s suspicion of drug use.
- Requesting the driver to submit to a blood or urine test or both.
Drug recognition experts conduct their investigations in a well-lit and controlled environment. So most of the tests will likely be conducted at a police station after the officers conduct the standard DUI tests. Based on the results of the tests, he/she will form an opinion on whether you were impaired while driving and what drug you likely consumed.
Police officers are bound by the guidelines under Title 17 on how to administer tests, the procedures of testing the samples, and how to preserve the samples. Any failure by officials involved in the process is grounds to question the reliability of the results.
Your Rights During the DUID Investigation
You do not have to answer any questions or take field sobriety tests administered by the drug recognition expert. The Fifth Amendment protects you from self-incrimination.
Most drivers assume that simply cooperating with the officer by taking the field sobriety tests and admitting to driving under the influence will help their case. This is a mistake. When in this situation, call your attorney immediately.
Unless the officers arrest you, there are no consequences for failing to submit to a chemical test. However, there are exceptions. The consequences arise if you are a driver under 21 or on DUI probation.
Officers should only take drivers into custody when they believe there is probable cause for the arrest. Additionally, police officers only read drivers' Miranda rights when the driver is in custody and not free to leave or when they want to ask questions whose answers will incriminate the driver. These questions include:
- Where are you coming from?
- Have you ingested any drugs?
- What drugs are you on?
You can refuse a blood or chemical test before being arrested, but you must submit to the tests once arrested. These tests are referred to as "evidentiary” tests. You must take the test even if you took a PAS test during the investigation by the drug recognition expert. Refusing to submit to a test will result in consequences, including the automatic suspension of your driver’s license.
A Driving Under the Influence of Drugs Trial
Vehicle Code 23152 requires the prosecution to prove the following (only then will the jury find you guilty):
- You drove a car, and
- You drove the vehicle when you were under the influence of:
- A drug, according to Vehicle Code 23152(f), or
- A combination of drugs and alcohol, according to Vehicle Code 23152(f)
The prosecution relies heavily on the arresting officer’s testimony and the blood and chemical test results to prove their case.
An officer will testify as to why he/she perceived the driver as impaired. This testimony is submitted when the officer answers questions, including:
- The driver’s unsafe driving manner led to the stop.
- The driver’s physical symptoms of intoxication — Red, watery eyes, a flushed face, slurred speech, and an unsteady gait
- The driver’s performance of the field sobriety or PAS tests
Unlike in DUI cases, a failed preliminary alcohol screening test does not have significant consequences in a drug-related DUI case. The PAS results are insignificant since there is no legal limit for the drug tests, and the tests indicate a sign of intoxication but lack conclusive evidence of drug use.
Note: The failed PAS test results are significant in DUI cases involving drugs and alcohol.
However, the police officer will testify that despite the inconclusive results of alcohol use, the results confirmed his/her suspicion of the driver’s impairment. Prosecutors rely on this testimony when defendants assert the lack of probable cause for the arrest as a defense.
Drug recognition experts will also testify. Unlike other police officers, DRES are specifically trained in drug detection. Their training and experience make them better placed to testify professionally and adequately in DUID cases. Prosecutors will present the DRE with questions about his/her background, qualifications, and primary responsibilities as the prosecution’s strategy to meet the “beyond a reasonable doubt” threshold. These responsibilities include:
- Confirming that the defendant’s symptoms are drug-related and not symptoms of a medical condition,
- Affirm that the driver’s impairment was not contributed by drugs alone if the charges are for driving under the influence of drugs and alcohol, and
- Testify that the blood and urine test results indicate the drug found in the driver’s blood or urine.
Part of the drug recognition expert’s testimony is taking the jury through the 12-step evaluation process. Prosecutors are keen on this testimony since it supports the DRE’s conclusion on the defendant’s impairment and the drug responsible for the driver’s impairment.
Criminal defense attorneys will also pay close attention to the officer’s testimony, aiming to identify any inconsistencies or violations of Title 17.
It is expected that DREs will conduct the DUID investigations. In some cases, investigations into possible DUIDs are conducted by officers who have training in detecting drug-impaired driving but are not drug recognition experts. These situations present opportunities to challenge the DUID charge since the officers could have failed to follow Title 17’s guidelines.
The prosecution will have an even harder time proving your case if the arresting officers proceed to conduct DUID investigations and have no training in drug detection. Experienced attorneys will file a motion to suppress the officer’s testimony on the defendant’s alleged drug-impaired driving.
Blood and Urine Tests as Evidence of a DUID
An important question arises: if there is no legal limit for drug-impaired driving, why does the prosecution rely on blood and urine tests to support their case?
Prosecutors will introduce the blood test into evidence in two ways.
- Toxicology report indicating the presence of drugs, and
- A qualitative analysis of the report showing the quantity of drugs detected in the blood sample
Drug recognition experts will then testify that the quantity of drugs detected in your blood is consistent with studies demonstrating that a similar quantity causes impairment.
Urine tests also show what drugs a defendant has ingested, but they are less reliable than blood tests since they require conversions in the testing procedures. These conversions are necessary since the level of drugs or alcohol in your urine is significantly greater than the amount in your blood. However, the figures used in the calculations are not universally agreed upon. Thus, the results are highly questionable.
Legal Defenses To Assert
You can assert several defenses to challenge DUID charges. Some defenses are specific to drug-related DUI charges, while others work best for drug- and alcohol-related DUI charges. Engage with your attorney to identify the ideal defense strategy likely to result in the best possible legal outcome.
Drugs in Your System Does Not Necessarily Mean Impaired Driving
No study has conclusively established a correlation between the amount of drugs in a driver’s system and the level of impairment since the impact of drugs on individuals varies. Some individuals experience the effects of drugs more than others. An individual’s weight, age, or medical conditions are some factors that impact drug effects on individuals.
In other cases, individuals build a tolerance for the drug through regular use. This category of people defies the general assumption that a high quantity of drugs means impaired judgment. They are less likely to be impaired due to their tolerance.
All these considerations challenge the prosecution’s case, and he/she is less likely to prove your impairment beyond a reasonable doubt.
You Were Within the Detection Window
The detection window of drugs is the time within which drugs can be detected in someone’s blood or urine after ingestion. This time is longer than the time it takes for an individual to get high due to several factors, including:
- An individual’s height, weight, and metabolism
- A person’s history of drug use
- The method of ingestion
- An individual’s tolerance
All these factors affect how long the drug remains in your system and how long it takes for the individual to remain under its influence. Here is a look at the detection window for some of the common drugs:
- Cocaine — One to three days in the blood and urine
- Opioids and heroin — One to three days in the blood and one to four days in the urine
- Amphetamines — 24 hours in the blood and one to three days in the urine
- PCP — One to three days in the blood and urine
- MJ (Marijuana) — 12 to 24 hours in the blood and one to seven days or more in urine for a first-time user
- MJ (Marijuana) — Two to seven days in the blood and seven to a hundred days in urine for a regular user
Defense attorneys rely on medical expert witness testimony on the detection window to question the drug enforcement officer’s assertion that you were under the influence of drugs.
Signs of Impairment are Not Necessarily Indicative of Drug or Alcohol Use
You could have swerved into another lane, driven slower than the recommended speed, or veered off the road, all actions that could have warranted the arresting officer to pull you over. On closer inspection, he/she realized your eyes were red and watery, you had slow reflexes, and you had an alcoholic odor.
These symptoms are common in individuals who are under the influence of drugs or alcohol. Individuals who are sick, allergic to allergens, diabetic, have a medical condition, have not slept in a long time, are tired, or are anxious or nervous exhibit similar symptoms. Therefore, showing these symptoms is not conclusive evidence that you were under the influence of drugs or alcohol.
Blood or Urine Tests are Not Always Accurate
Blood or urine tests could return positive for alcohol, drugs, or both. However, the test results are questionable if the officers fail to adhere to Title 17’s guidelines on administering, storing, and testing the blood and urine samples.
Criminal defense attorneys target specific issues as a strategy. They argue that the results cannot be relied upon because:
- The testing equipment was contaminated
- Officers improperly drew the defendant’s blood
- The officers or lab technicians failed to handle the samples correctly
- The samples were not properly stored
In cases where prosecutors rely on a defendant’s urine samples to make the case, a defense attorney will assert the unreliability of the urine tests to establish impairment. Urine tests are deemed unreliable.
Administering urine tests raises concerns about practicability and privacy issues. The following are some challenges that have raised doubts as to the reliability of the tests:
- Drivers’ inability to provide urine samples when required
- Officers observe drivers when urinating, and some drivers consider this offensive
- Urine samples show a higher concentration of drugs or alcohol, unlike blood samples
Raising all these questions certainly challenges the prosecution’s case enough to result in the dismissal of the charges.
Other general defenses your attorney could opt for include the following:
Police Officers Failed to Read to You Your Miranda Rights
It is necessary to correct a misconception: when you are arrested, and the officers do not read you your rights, you can escape punishment. This is not true.
Officers are required to inform you of your rights before interrogating you. The officer must tell you that,
- You have a right to remain silent
- You do not have to say anything. Anything you say can be used against you in a court of law.
- You have the right to have an attorney present during the questioning
- If you cannot afford an attorney, one will be provided for you if you so wish
Should the officer fail to inform you of your rights, defense attorneys will request that the judge exclude any statements you made in the interview as evidence. If so granted, statements including an admission of guilt will be excluded.
Lack of Probable Cause
Police officers require probable cause before pulling you over for a suspected DUI. Officers should show objective circumstances that led them to believe the driver was under the influence.
For example, erratic driving, running a red light, and veering off the road on several occasions are some of the reasons that could lead an officer to suspect a driver of being impaired.
Without probable cause, a judge is likely to dismiss the DUID charges.
Note: Officers do not require probable cause at a DUI stop.
Possible Penalties Upon Conviction
Most drug- and alcohol-related DUIs are misdemeanor offenses. The penalties vary depending on the type of charge. Prosecutors can also pursue felony DUI charges if:
- The defendant has a prior conviction for at least one felony
- The defendant’s current DUI offense is a fourth or subsequent DUI violation
- Another individual was killed or seriously injured because of a crash resulting from the defendant’s drugged driving or is the defendant’s third or subsequent DUI-causing injury charge.
Penalties for a First-Time DUID Conviction
If convicted of a first-time DUI offense, you will face the following penalties:
- Three to five years of DUI probation
- A $390 minimum fine that could go as high as $1,800 after penalty assessments
- A driver’s license suspension for at least six months
- Mandatory enrollment and attendance in a court-approved DUI school for a three-month drug education
Penalties for a Subsequent DUID Conviction
You will face charges for a second DUID if you commit the offense within ten years of your first charge. Subsequent DUID charges also follow within ten years of the previous conviction. Convictions result in:
- Up to five years on probation
- A possible mandatory jail sentence f up to one year
- Fines of up to $3,000
- Compulsory enrolment in a DUI school
- Driver’s license suspension for up to three years
Penalties for Felony DUID Convictions
A conviction on felony charges results in the following penalties:
- Formal probation or 16 months to four years in jail or prison
- A fine of between $1,000 and $5,000
- A suspension or revocation of your driver’s license
Penalties for Refusing to Submit to a Chemical Test
Failing to submit to a chemical test after being arrested will result in penalties including:
- An automatic driver’s license suspension, and
- A mandatory 48-hour jail sentence
Find a DUI Defense Attorney Near Me
Are you or a loved one facing driving under the influence of drugs and/or alcohol charges?
The Los Angeles Criminal Attorney team is ready to offer legal assistance. DUIs in California are complex. However, with the proper help, you can successfully challenge the charges. For more information, contact our team at 424-333-0943.