Impairment driving is a concern for many because of its potential risk to human life and property damage on the road. While alcohol tops the impaired driving cases, drug impairment driving is equally consequential. You will be arrested for driving under the influence of drugs should the arresting police officer suspect you of driving while impaired, and subsequent tests reveal you are under the influence of drugs.
Vehicle Code 23152(f) criminalizes driving under the influence of drugs. This statute considers both illicit and prescribed as potential hazards since both impair one's ability to make rational judgments. So you will be charged with a DUID even if you were on prescribed medication. The Chula Vista Criminal Attorney team addresses DUID in detail below, including the penalties and possible legal defenses you can use in the case.
Driving Under the Influence of a Drug — Overview
Any drug can impair your ability to drive. This is why Vehicle Code 23152(f) details illegal and prescription drugs. The common prohibited drugs include heroin, LSD, cocaine, methamphetamines, cocaine, and ecstasy.
Prescription drugs include oxycodone, oxycontin, Vicodin, and Ambien, while sleeping pills, cold medicine, and allergy medication like antihistamine form the common over-the-counter drugs that could land you in trouble.
While marijuana use is legal in California, driving under the influence of marijuana is a criminal offense. Marijuana still possesses properties that impair your driving and will thus result in criminal prosecution. We discuss driving under the influence of marijuana in detail below.
What it Means to Drive
You can only face DUID charges if you were driving a vehicle at the time of the arrest. It is thus pivotal to understand what driving a car means in law.
Driving refers to intentionally moving the vehicle using physical control. The engine does not need to be on for the car to move. When the engine is turned off, police officers rely on circumstantial evidence to justify your arrest, even if they did not see the vehicle move.
Vehicles for purposes of VC 23152(f) include all moveable units not propelled by an individual. This definition includes cars, buses, trucks, E-bikes, E-scooters, motorized wheelchairs, motorcycles, and horse-drawn carriages. Therefore, you are not liable under Vehicle Code 23152(f) for operating a bicycle, skateboard, manual wheelchair, and trains or trolleys.
Legal Limit of DUID
Driving under the influence of alcohol cases rely on the legal alcohol limit to prove guilt. However, there is no legal limit in DUID cases. Police and the prosecution rely on evidence from various tests to determine your guilt.
Police Building DUID Cases
Police require probable cause to stop you. Only then can they use different tests to confirm their suspicion of your impaired driving. However, probable cause is not needed at DUI stops.
Drug recognition experts (DRE) conduct drug investigations. DREs are police officers with special training in recognizing drivers under the influence of drugs, alcohol, or both.
DREs look for behavior and appearance during their investigations. His/her training also makes it possible to identify other conditions or injuries that cause signs of impairment. They rely on the following during their investigations.
Police officers wil ask a series of questions to gauge your alertness, awareness, and alertness. The officer’s assessment of your responses will determine whether to employ other tests to confirm his/her suspicion of your impairment.
Noting Objective Signs of Intoxication
These signs include slurred speech, unsteady gait, poor coordination, and glazed eyes.
Field Sobriety Tests (FSTs)
These are a series of tests of mental and physical exercises police administer during DUI investigations. Poor performance is indicative of impairment. Horizontal gaze nystagmus (HGN), One-leg stand (OLS), and Walk-and-turn (WAT) are the three standardized field sobriety tests police officers rely on.
- Horizontal gaze nystagmus (HGN) — This refers to the involuntary jerking of the eyes when you move your eyes from one side to the other. Most people would be unaware of the jerking of their eyes unless pointed out. Whereas inebriation is one factor that could cause HGN, it is not the only one.
- One-leg stand (OLS) — You will be asked to perform specific tasks an inebriated individual would not perform with ease. Expect the officers to ask you to do the following when performing this test:
- Raise your foot six inches from the ground
- Hold that position and remain still
- Count progressively from a specific number, for example, 1001 onwards
- Look down on your foot
Officers rely on swaying, hoping, using your arms for balance, or putting your foot down as a confirmation of inebriation.
- Walk-and-turn (WAT) — This test establishes your coordination when subjected to physical and mental tasks. It is also referred to as the nine-step walk turn, nine-step, DUI-walk-the-line, or DUI straight-line test.
Note: You are under no obligation to take FSTs. They are optional. You can decline to take the test without any penalty. It is possible to fail the FSTs for reasons other than drugs or alcohol.
Performing a Roadside Breathalyzer Test (PAS Test)
Officers use PAS tests to establish alcohol impairment. The tests determine an individual’s blood alcohol content (BAC). The tests do not specify an individual’s level of drug impairment. However, officers will use it to make their case against you. They will claim that though the test is not conclusive as to the extent of intoxication, it is a confirmation of it.
Blood, Urine, and Saliva Tests
Blood, saliva, and urine samples accurately confirm the presence of drugs and/or alcohol. DRE officers could opt to have your blood, saliva, or urine tested in a lab to affirm their suspicion.
Refusal to Take a Chemical Test
The prosecution for the offense soon follows an arrest for driving under the influence. However, the prosecution will request sentence enhancements if you refuse to submit to a chemical test. Additionally, the DMV will suspend your license in a DMV hearing for one year. The DMV will further deny any request to obtain a restricted license.
Penalties Upon Conviction
The DA can pursue misdemeanor or felony charges since driving under the influence of drugs is a wobbler offense. He/she considers several factors before settling on the charges. Any adverse issues inform their choice to pursue a conviction on felony charges.
Prosecutor will take into account:
- Whether you have any prior convictions
- Whether the arrest followed a crash, and
- Whether there were aggravating factors in the arrest, for example, another individual was injured.
A judge could issue the following penalties if convicted for a VC 23152(f) violation as a first offense.
- Up to six months in jail
- Probation for three to five years instead of spending time in jail
- Attendance of a DUI school — These institutions offer education and awareness on drugs and alcohol with a program running for 3 to 9 months,
- Possible community service, and
- Fines north of $390 but not exceeding $1,000 plus penalty enhancements
Note: DMV hearings are independent of court proceedings. As a penalty for your driving under the influence, the DMV will suspend your license.
In most situations, first-time offenders whose cases do not have aggravating factors serve little to no jail time. However, the defendant should complete the probation sentence.
Convictions for VC 23152(f) violations result in felony penalties. You could face felony charges if another person were injured, you have a prior felony DUI conviction, or you have three or more prior wet reckless or DUI convictions within ten years.
A conviction for a first-time felony offense results in:
- 16 months to 16 years in prison
- Fines of between $1,015 to $5,000 plus restitution fees
- Court-mandated attendance in a DUI program for 18 to 30 months.
A fourth conviction for a VC 23152 violation is also known as a felony DUI. However, it is a wobbler. The offense is punishable by:
- 180 days to one year in jail if convicted of a misdemeanor violation
- 16 months, two or three years in prison for a felony
- A fine of between $90 and $1,000
- 30 months in a court-mandated DUI school
- A habitual traffic offender tag that remains in effect for three years, and
- A four-year, driving license revocation
Note: Driving under the influence of drugs is a priorable offense, as is driving under the influence of alcohol. Both violations are addressed under VC 23512. Therefore, subsequent convictions within ten years result in harsher penalties.
The circumstances of the case determine if sentence enhancements are warranted. Prosecutors can seek additional charges or persuade a judge to increase the penalties. Either option increases the penalties you will likely receive.
You could receive sentence enhancement if:
- You caused an accident.
- The accident resulted in an injury or death — The death of another could result in you being charged with gross vehicular manslaughter while intoxicated, a PC 191.5(a) violation, or vehicular manslaughter while intoxicated, a PC 191.5(b) violation.
- Refusal to submit to a chemical test.
- Having a child in the car while driving under the influence of drugs — You could be charged with child endangerment or be sent to jail for 48 hours to 90 days, depending on your prior record.
DUI of Marijuana
Marijuana’s recreational use, though legal in California, is regulated. For instance, It is a crime to operate a vehicle under the influence of marijuana.
All drivers are expected to exercise due care on the road. You achieve this through driving safely while obeying traffic rules. Marijuana impairs an individual’s ability to make rational sober decisions. Thus, driving under the influence of marijuana puts other road users at risk.
Note: Alcohol impairment is easy to prove, unlike drug impairment, since DUI laws provide a legal limit. Therefore, prosecutors face a significant challenge in proving drug impairment. The case is no different from a DUI or marijuana case.
Some states restrict the THC (delta-9-tetrahydrocannabinol, the primary psychoactive component in marijuana) quantity that should be found in a driver’s bloodstream. California has no legal limit, a situation explained by the lack of reliable chemical tests specific to marijuana testing and the lack of consensus by the industry experts on what marijuana level is too much for driving. Prosecutors will therefore rely on the following to prove the case against you.
- Your driving pattern
- The results of the Field Sobriety Tests
- Statements by the Drug Recognition Experts
- The presence of marijuana or drug paraphernalia in the car or on your person at the time of the stop
- Noticeable signs of intoxication, namely:
- Rapid breathing
- Slurred speech
- Red eyes
- Dilated pupils
- Slowed reaction time
- Marijuana odor from your body
- Results from blood and urine tests — Blood tests specifically look for THC in the blood. It is worth noting that THC can remain in the blood for up to one month or longer. That means THC can be found in your bloodstream within one to three hours of smoking or if you are a chronic user. Therefore, its presence is not necessarily proof of a possible VC 23152 violation.
Urine tests show the precedence of inactive metabolites found in marijuana and do not directly check for THC. these metabolites can be detected long after marijuana use. For instance, they can be present for up to four weeks for chronic users.
Note: Though the chemical tests are largely unreliable in pinpointing marijuana use, prosecutors still use the results to make the case to establish intoxication. They will use the tests and the evidence mentioned above to prove you were driving under the influence of marijuana. Further, prosecutors can charge you with a DUI of Marijuana even if the test was not offered or you refused to take the chemical test.
It bears pointing out that the legal use of marijuana is not a defense in a DUI-related case. This provision addresses medical marijuana use only.
Penalties for Driving Under the Influence of Marijuana
DUI of marijuana is a wobbler. You can either be charged and subsequently convicted for misdemeanor or felony violations. The penalties for operating a vehicle while under the influence of marijuana include the following:
First offenders will be convicted for misdemeanor violations. The penalties include:
- Jail time ranging from 96 hours to six months
- Informal probation for three to five years instead of jail time
- A fine of between $390 to $1,000, and
- A six-month driver’s license suspension
The penalties increase for second and third convictions.
Felony offenders will receive the following punishment upon conviction:
- Up to three years in prison
- Felony probations as opposed to prison time
- A driver’s license suspension for one year or longer
If the DUI resulted in the death of a third party, you would likely face gross vehicular manslaughter or Watson murder charges.
Defenses You Can Assert in a DUID Case
An arrest or driving under the influence of alcohol does not mean it will automatically result in a conviction. You can challenge the charges with the right defense strategy and avoid the life-altering consequences. Here are a few your attorney could use.
a) No Probable Cause for the DUI Arrest
Police officers need a justifiable reason to make a traffic stop or arrest you. Failure to do so violates your Fourth Amendment right, protecting you from unreasonable searches and seizures. The right asserts the reasonable suspicion and probable cause theory.
Police officers should have a reason to pull you over. A traffic violation or an infraction is enough to justify a stop. He/she should further explain the reason for stopping you. At this point, reasonable suspicion is achieved.
Note: Officers need not specifically suspect you of driving under the influence of drugs. Any other valid reason suffices.
Probable cause, on the other hand, refers to grounds for your arrest. An officer should have sufficient evidence to believe you were driving under the influence of drugs before arresting you.
It is equally important to address DUI sobriety checkpoints. These checkpoints offer the exception to the reasonable suspicion rule. Police officers do not require reasonable suspicion of an offense to stop drivers at legal DUI checkpoints.
Any violation of your Fourth Amendment rights is grounds for challenging the charges. Your attorney will file a motion to suppress evidence under PC 1538.5. The motion requests to exclude evidence obtained through an illegal search and seizure.
b) Symptoms of Intoxication are Not Always Indicative of Intoxication
Physical signs associated with intoxication are not a reserve of intoxication. Other issues could explain the physical signs. For example, your speech could have been slurry, you could have had a flushed face, the officers could have noticed your eyes were red and watery, or you could have an unsteady gait. Injuries, weight issues, medical conditions, or fatigue also have the same physical signs.
Additionally, field sobriety tests are not an accurate measure of impairment. The lack of physical and mental coordination is also evident in people who are overweight, have medical conditions, are fatigued, lack natural physical coordination, or have other ailments.
Knowledgeable defense attorneys will assert this defense if there is adequate proof that your physical symptoms and failed tests can be explained away and that you were not under drugs at the time.
c) Police Officers Failed To Administer Tests As Per Title 17
Title 17 sets the guidelines police officers should follow when administering breath, blood, and urine tests. The law requires the following when officers administer blood tests.
- An authorized technician draws the blood.
- The draw site should be cleaned by an alcohol-based cleaning agent
- The blood vial should contain a sufficient amount of anticoagulants. Further, the anticoagulant or preservative should not have expired
- The sample and the preservative or anticoagulant should be properly mixed
- The blood sample should be properly stored
On urine tests, Title 17 regulations are as follows:
- A driver suspected of driving under the influence of drugs should first void his/her bladder
- Provide a urine sample a least 20 minutes after
- The urine sample should be retained for one year — This helps keep a sample for retesting at a later date
A failure to follow Title 17 could result in tainted samples. This possibility is enough grounds for your attorney to question the integrity of the investigation and its results. This move could potentially result in reduced charges, if not a dismissal.
d) You Recently Used Marijuana, But It Was Not Significant Enough to Impair Your Driving
Chemical tests have one flaw: they show that someone used marijuana without detailing how long ago.
You could test positive even if it has been more than three hours since your last smoke. Regular users also test positive for THC even if it has been days since their last consumption. Chronic users are no different. They will test positive a month after their last weed smoke.
Therefore, a positive test for marijuana is not a confirmation of your impaired driving. Prosecutors should introduce additional evidence to support their assertions. On the other hand, your attorney will explain to the court the circumstances of your marijuana positive test.
In other cases, you could have smoked marijuana. However, it does not mean you were necessarily impaired. Since California has no legal limit on marijuana use, prosecutors bear the burden of proving you were indeed impaired, the test was a confirmation of marijuana, which explains your impairment. He/she should prove this assertion beyond a reasonable doubt.
An experienced attorney will efficiently utilize the lack of a legal limit in his/her submissions in your defense.
Note: It is illegal to drive when you are addicted to drugs. Whereas prosecutors do not initially charge you for driving while addicted to drugs, it is not uncommon for some to use your addiction to support their case against you.
Find an Experienced Criminal Defense Attorney Near Me
Have you or a loved one been arrested and faced prosecution for driving under the influence of a drug?
It is in your best interest to contact an experienced attorney right away. Their assistance is pivotal. Contact Chula Vista Criminal Attorney at 619-877-6894 to discuss your pending case with one of our attorneys. We offer free, confidential consultations.