In California it is a criminal offense to drive while under the influence of a drug. Drugs, just like alcohol, could cause impairment and makes it hard for you to operate a vehicle. The law that prohibits driving while impaired is found under VEH 23152(f). According to the statute, you are guilty if you drive impaired by prescription or across the counter medications, legal and illegal drugs, or a combination of alcohol and drugs.
The penalties for a guilty verdict are severe, with the offense being a priorable one. If you face these charges, you must challenge the allegations to avoid harsh penalties. At The Los Angeles Criminal Defense Attorney, we have extensive experience in DUI laws and will passionately defend for a more desirable outcome.
Overview of DUID in California
Two laws in California criminalize driving while impaired by drugs. These laws are:
VEH 23152(f) – This law prohibits one from operating a vehicle while impaired or intoxicated by drugs and
VEH 23152(g) – This law prohibits driving when under the intoxication of both alcohol and drugs.
According to the law, drugs are defined as substances aside from alcohol affecting the brain, nervous system, or muscles causing impairment. When you are impaired, the law states that you are unable to operate as an ordinarily careful person would when in control of their faculties.
Drugs in California include:
Legal drugs like Marijuana
Legally prescribed medications even when they do not make you high
Illegal substances like heroin, cocaine or methamphetamine among others
Across-the-counter medications like antihistamines or cold medicines
Apart from the various drugs that can result in a DUID charge, most cases involve motorists intoxicated by the following drugs:
Prescription Vicodin, Oxycontin and opiates
Additionally, you will get charged with this offense even if the medication you have taken is critical to your health and causes impairment, and you still drive.
If you get charged with this offense, the prosecutor must determine various elements or facts. If the jury is left with any doubt concerning any of the elements, it can dismiss the charges. The work of your lawyer will be to challenge the prosecutor’s evidence by arguing against the determination of the facts.
The elements that prosecution must show include:
You drove a motor vehicle
As you drove it, you were intoxicated or impaired by drugs or
You are addicted to drugs, yet you operated a car at the time of arrest and
Because of your intoxication, you drove recklessly, negligently or carelessly
Legal Impairment Limit for DUID
One of the common questions for individuals arrested on a DUID charge is whether there is a limit of how high a person can be on drugs to drive. Unfortunately, unlike driving under the influence of alcohol where there is a legal limit, the same does not apply to drug driving. The National Highway Traffic Safety Administration states that currently, there are no specifications on the level of drug concentration known to affect a motorist’s performance.
Based on the above statement, it does not matter the volume of drugs in your system as long as you have some, and they have caused impairment. Additionally, if you took drugs and, at the same time, alcohol or are addicted to drugs and are not under treatment for your addiction, it is illegal to drive.
The Arrest Process in a DUID
Getting arrested on a DUID is similar to getting arrested on alcohol-intoxicated driving. Typically, an officer on the highway may notice your driving pattern and stop you for further investigation. If you seem impaired, the police officer will start investigating if you are under the influence. During the investigation, the police officer will:
Ask you questions concerning your drinking or use of drugs
Ask you to submit to a preliminary alcohol screening test (PAS)
Ask you to agree to field sobriety tests (FSTs)
Identify any visible symptoms of impairment like constricted or dilated pupils
Look for drugs or paraphernalia used in drugs
If, after taking the breathalyzer test, the results are below the legal limit and you still seem intoxicated, drug use will be suspected. In this case, a drug recognition expert (DRE) may be called to evaluate you. Additionally, you may be asked to allow the officer to do a mouth swab to determine the presence of drugs in your system.
An officer specialized in identifying narcotics influence in a person is called a drug recognition expert (DRE). A program known as the DRE program was started in the Los Angeles Police Department (LAPD) and later taken over by California Highway Patrol (CHP).
If the evaluation is carried out, and the officer believes drugs impair you, you will get arrested for further chemical tests and charges.
Steps in Evaluating Drug Impairment
Before you get arrested and charged with driving intoxicated by drugs, an evaluation by a DRE is carried out. This examination involves:
Confirming your BAC does not indicate impairment by alcohol
Questioning by the arresting police officer
Identifying your physical symptoms that include your pupil size, pulse rate, a residue of narcotics in your nostrils or mouth, the tone of your muscles and track marks
Carrying out horizontal gaze nystagmus to check on the reaction of your eyes
Re-dong the FSTs
Interviewing you concerning your drug use as they observe your behavior
Requesting you to a chemical test that involves either blood or urine and sometimes both
It is essential to understand that the roadside does not carry out a comprehensive DRE evaluation. Although the expert can be called to the scene, when they suspect the need for further investigation, the location is changed. Ideally, a room that is well lit and controlled from external distractions is preferred. Police stations are equipped with such rooms making it the ideal place to investigate you further. Following the investigation, the officer will determine if your impairment is a result of drug use and what drugs you used.
Your Rights Following the Investigation
During the investigation or when you are pulled over, it is understandable that you may be confused, shocked, and scared. The police officers know this and may prey on your vulnerability and intimidate you to self-incriminate. However, you can avoid this by understanding your rights.
One of your fundamental rights is that you don’t have to respond to the DRE questions or submit to FSTs. During the process, you can exercise your Fifth Amendment Right and avoid incriminating yourself. If you are not under arrest, you will face no repercussions for refusing to cooperate.
However, your rights are limited in this regard if:
You are presently serving a DUI probation sentence or
You are below 21 years
The Actual Arrest
After the process outlined above, you will be arrested if there is a probable cause or release. If the officer arrests you for DUID and you are not free to leave, you will be read your Miranda rights. Additionally, if the officers want to ask you further questions that can result in self-incrimination, you will also be read your Miranda rights. Some questions that you need to be careful when answering and that can incriminate you include:
What is the name of the drugs you took?
What quantity of drugs did you have?
Were you already high when you started driving?
It is important to note that Miranda rights are only read after being arrested and not before or during the investigation.
Chemical Test Following a DUI Arrest
Typically, if you get arrested on suspicion of impaired driving, you are subjected to a blood or breath chemical test to determine the level of intoxication. Before you are formally arrested, you can decline to have a breathalyzer test taken or do field sobriety tests without consequences. The script changes, however, when you get officially arrested for the offense. When an officer arrests you, refusing a chemical exam has various effects, with one of them being the suspension of your license.
A breath chemical test only detects alcohol in your system but not drugs. Administering this test is standard and does not require the officer to obtain a court order as opposed to a blood chemical test. If, after taking a breathalyzer test, it indicates you have no alcohol in your system, or the levels are low, the officer will suspect your impairment is due to drugs.
Under these circumstances, the officer will ask you to submit to a blood chemical test or urine test to check for drugs. However, if you refuse a blood test, the officer can obtain a court order to draw your blood for testing.
After your blood is drawn, it is screened by a toxicology expert. The screening lists down the drugs in your system, if any. However, the quantity of the medicines in your blood is not revealed, the test only shows if you have or don’t have drugs in your system. If the tests show more than one drug is in your system, a quantitative analysis is done. This is typical to indicate the quantity of either substance in your blood.
There is no per se law for a DUID. Unlike alcohol intoxication, there is no agreed amount of drug concentration in your system that results in a per se charge. Because of this, the law only states that you are guilty of a DUID if you operate a vehicle when:
Intoxicated or impaired by drugs
Impaired by both alcohol and drugs or
When you are a drug addict and are not getting help for it.
Sometimes blood test outcomes are not decisive, but when they show the presence of drugs, the prosecutor uses them to get a conviction. A DRE becomes a vital asset to the prosecutor’s case and an expert in toxicology to show:
You had drugs in your system
The amount of drugs present and
Where applicable, the time you may have consumed the drugs
Despite all this, it is not enough to conclude you were impaired by drugs and operated a motor vehicle. For the prosecutor to build a stronger case, heavy reliance is on the arresting officer’s observation, the DRE, and testimony from a toxicology expert.
What Happens During your DUID Trial?
When you get arrested for driving under the influence of drugs, bail is typically set, and once you pay it, you are allowed to go home and come for your trial later. During the trial, the prosecutor presents opening arguments as well as your attorney. The judge allows each side to offer their cases with the jury following the proceedings.
The prosecutor must prove the various elements of the offense earlier discussed while your attorney refutes the evidence presented against you. The prosecutor relies heavily on the testimony of the officer that arrested you and the DRE.
Typically, when you get stopped on suspicion that you are operating a vehicle impaired, the officer would carry out a breathalyzer test. In a DUID, a breathalyzer test cannot register any drugs in your system, but alcohol only. The officer can testify that you passed the breathalyzer test but displayed symptoms of intoxication, prompting them to investigate further.
The DRE’s testimony is also heavily relied on for a conviction. According to VEH 23152 and VEH 23152(g), this testimony is more potent due to the training the officer receives in drug recognition. The expert is also trained in the best way to present their evidence to make sure the jury is persuaded. The drug expert begins their testimony by outlining their qualifications and training. Their statement usually centers on the following:
A confirmation that your impairment was not due to alcohol
Evidence that you were intoxicated by drugs and did not have an underlying medical condition
Concluding that one or more medications impaired you
In convincing the jury of your violation, the DRE will outline the evaluation process in detail and support their findings. The conclusion by the drug expert may indicate that you were intoxicated by:
A depressant affecting the central nervous system such as soma or valium
A stimulant affecting the central nervous system like cocaine
A hallucinogen like an ecstasy
Narcotics analgesics like Vicodin or codeine
GHB, among others
Penalties for a DUID Violation
When charged with operating a vehicle intoxicated by drugs, a conviction will result in severe sentencing. As earlier stated, a DUID offense, just like a DUI, is a priorable offense. This means that your sentencing is usually based on whether or not you have a prior conviction on the same crime or not.
When you are a first-time offender, the penalties for this offense are less severe to those of a repeat offender. The time that is considered under the sentencing is usually ten years from when you were first convicted.
If faced with your first DUID offense, a conviction will result in a misdemeanor conviction. The punishment for this includes a minimum of ninety-six hours of county jail imprisonment, but not over six months. Instead of the jail sentence, the judge can opt to sentence you to misdemeanor probation and a fine ranging from $390 to $1,000.
A conviction on this first offense further earns you more punishment that includes the suspension of your driving privileges for six months or more. At the same time, the judge can order you to attend a DUI school for counseling and treatment against the use of drugs.
If you are faced with DUID charges for the second time in ten years, it is more severe than the first time. Notably, the offense remains a misdemeanor unless aggravating factors exist, making it a felony. A second misdemeanor conviction for a DUID will earn you a county jail sentence of not less than ninety days and not over a year.
The judge can also sentence you to serve misdemeanor probation and pay a fine more than that of a first conviction, ranging from $390 to $1,000. Another consequence for a second DUID conviction in California would be the suspension of your driving privileges for two years and attendance to a DUI school.
Just like in a second conviction, a third conviction will earn you a steeper penalty. The offense is still prosecuted as a misdemeanor in the absence of aggravating factors such as significant bodily injury or death. A guilty verdict for the third time will earn you a minimum of four months of county imprisonment with a maximum sentence of a year. A misdemeanor probation sentence can also be imposed alongside a fine ranging from $390 to $1,000. Just like in the previous convictions, you will get your driver’s license suspended and attend a DUI school.
A fourth conviction in ten years is punished more severely. The offense at this stage is a wobbler meaning it is prosecuted either as a felony or misdemeanor. If you get convicted on misdemeanor charges, your sentence will be a minimum of 120 days of county imprisonment to a maximum of a year. A felony conviction, on the other hand, is more severely punished with state imprisonment of three years or less.
A cash fine is charged in addition to the prison sentence and the suspension of your privilege of driving. The judge can also sentence you to a DUI school as well as probation in some cases.
Defenses when Faced with a DUID Charge
When you are faced with a DUID charge, the offense is what is known as strict liability. This means that you do not need to have had criminal intentions before committing the crime. Additionally, the crime does not require you to feel or think you were sober for a conviction.
Regardless, you will need to defend yourself against the charges with the help of an experienced attorney. Your attorney will study the prosecutor’s case and interview you to develop strategies for your defense. Some of the arguments based on the circumstances of the offense are:
You were Sober and not Impaired
You are not guilty of a DUID if you were not under the influence of drugs as you operated the vehicle. Having the drug in your system does not necessarily mean you were impaired. With this defense, your lawyer must challenge the chemical test results and invite an expert witness to challenge the prosecutor’s evidence. If your lawyer can prove the volume of drugs you had in your system was insignificant to cause impairment, you are innocent of the offense.
You did not Operate a Vehicle Intoxicated
One of the critical elements to prove is that you operated or drove a vehicle while under the influence of drugs. If the arresting officer found you asleep in the car due to intoxication, it is not proof that you were driving. Your lawyer can argue that you took the drugs and decided to sleep them off before driving. As a result, the officer found you asleep but not operating the vehicle. If this argument is persuasive enough and authentic, you are innocent of the offense.
Sometimes you can find you were drugged without your knowledge. For instance, you were at a party, and you took one cocktail. Unknown to you, the drink was laced with a drug that caused you impairment. If you did not know you were drugged and the prosecutor cannot prove that you took the drugs voluntarily, you would not be guilty of the offense.
Aside from these and many other defenses, your attorney can argue against the charges by challenging the test results. Chemical and field tests are not entirely accurate; neither are they foolproof. Results have been reported to be false before, contaminated or mixed up in the lab.
Plea bargaining is another way your attorney can fight against strict sentencing. If the prosecutor’s case is weak, you can plead guilty to a lesser charge or no contest. With this, the sentence you receive is often less severe and, in most cases, will result in your avoiding a jail sentence.
Find a Criminal Defense Lawyer Near Me
If you get charged with a DUID offense, the facts surrounding your arrest and case are critical. These facts can be the reason you are freed or convicted of the crime. With an experienced attorney from The Los Angeles Criminal Defense Attorney, you can build a strong defense around these facts and have your charges dropped or receive a lighter sentence. Call our offices at 310-564-2605 to further discuss your case and strategies to challenge the allegations.