Driving Under the Influence of Drugs

In California, driving under the influence of drugs is similar to that of driving under the influence of alcohol, but differences exist as well. Especially when it comes to the interpretation of DUI laws and statutes. A “drug” is recognized as any substance other than or not related to alcohol that has the ability to affect or impair the body's nervous system, muscles and thought processes. When a person's responses, actions and demeanor are impaired by a drug or other substance, they are said to be “under the influence” of that substance.

Drugs that are capable of causing impairment are not limited to prescription drugs (vicodin), over the counter medications (acetaminophen) or illicit drugs (marijuana, cocaine, meth, etc.). Any impaired person caught driving under the influence of any of these types of drugs can and will be prosecuted under California state law.

Individuals who are suspected of a DUID (driving under the influence of drugs) will be subjected to a possible roadside investigation where a drug recognition expert will evaluate their level of impairment. A DRE is capable of determining the types of drugs used as well as notice various types of impairment.

A person being considered for a DUID charge will be evaluated on their actions and responses to questions, as well as their demeanor and ability to communicate. Unlike individuals who have been stopped for a DUI, there is no telltale number to prove their guilt or innocence. A person's blood alcohol content or BAC serves no purpose in a drug investigation.

In California, if you are caught driving under the influence of drugs, it will more than likely be considered a misdemeanor. However, if there are circumstances where the charge can be increased to a felony. For example:

• You have had four DUI charges in a row
• You have one conviction of a felony DUI already on your record
• Your driving led to an accident or collision that caused injury or death to a third party.

While the penalties for driving under the influence of alcohol or drugs is similar, the charges dramatically begin to increase as each offense continues to build up. When aggravating circumstances are also added to the picture, higher penalties and an increase in jail time will also follow.

Possible penalties and consequences for a DUI are:

• fines which include court costs, drug classes and probation fees (first offense: upwards of $1,800)
• 3 to 5 years probation
• attendance and completion of a DUI school sanctioned by the state of California
• Suspended driver's license which will increase with each subsequent charge
• depending on the severity of the charge, your prior record and any mitigating circumstances, jail time may be mandatory

Depending on the circumstances, it may be possible to avoid any and all of the above charges if you could bargain for a lesser charge such as exhibition of speed or reckless driving. Because of the nature of the drug laws, if you are found to be impaired by one of the drugs listed in the Health and Safety Code 11550, prosecutors may choose to charge you with this offense in addition to the DUI.

Individuals charged with DUID in California have several legal defense strategies at their disposal. The following are the most common, but there are several to choose from.

• An appearance of drugs in your system is not an indication of impairment.
• Exhaustion, fatigue or illness can cause symptoms of impairment when no drugs are in the system.
• In some cases, the procedures used to collect, store and analyze blood are often out of compliance with state mandated standards, in California these would fall into Title 17 Procedures.

The following information is presented to help you gain a better understanding of California's Driving Under the Influence of Drugs laws and statutes.

1. Driving Under the Influence of Drugs Laws in the state of California

California Vehicle Code 23152 (a) prohibits individuals from driving under the influence of both alcohol AND drugs. A drug is considered to be any substance outside the classification of alcohol, that impairs or adversely affects a person's nervous system, muscles or mental and behavioral capacities.

Individuals who choose to drive in an impaired state cannot exercise caution, nor react in a safe manner as a sober person in the same situation. When a person's mental and emotional state has been impaired to the point of intoxication, they are said to be under the influence. Various types of drugs can cause these reactions. It makes no differences if you have taken a prescription medication which is perfectly legal, an over the counter medication or illicit or illegal drugs such as marijuana or methamphetamines. If marijuana or meth are involved, additional charges may be added to the initial list.

In the state of California, the only issue for concern is how the drugs affected your mental and physical responses to the situations which you were exposed to. The level of drugs a person has in their system cannot be as easily measured as that of BAC or blood alcohol content. The fact that the legal limit for alcohol in California is .08 percent or greater, has no bearing on a DUI drug charge. Because there is no way to measure the amount of drugs a person has used, the arresting officer or DRE will be asked to testify to the defendant's actions while out in the field.

2. DUID Investigations
Driving under the influence of drugs and how it is investigated and prosecuted is extremely different than DUI charges that are applied to individuals with alcohol related DUIs. Most investigations begin with a California officer become aware of actions that indicate some form of impairment other than what is produced from alcohol. If drug use is suspected, a drug recognition expert will be called in to evaluate your condition and determine if drugs are involved.

2.1. Drug Recognition Experts
Law enforcement officers who have been specially trained to recognize the outward signs of drug use. They are able to recognize specific actions and symptoms that indicate the use of narcotics that could lead to impairment resulting in a DUI charge. The California Highway Patrol assumed control of the DRE program originally created by the Los Angeles Police Department.

There are 12 steps involved in a DRE investigation. Once the drug recognition experts shows up at the scene they assume control of the investigation.

1. Checks BAC to confirm signs are not alcohol related
2. Speaks with arresting officer and gains information about the present circumstances
3. Performs an initial physical examination which includes pulse rates
4. Performs an eye tracking exam to assess the impairment of your vision or to determine if you have HGN (horizontal gaze nystagmus) or a jerking of the eye indicative of alcohol and drug use
5. Conducts field sobriety tests that include the “finger to nose” test, “walk and turn” test, “Romberg balance” test and the “one leg stand” test
6. Assessment of vital signs as well as pulse rate
7. Perform checks to determine the size of your pupils, as well as checking the surfaces of the nose and mouth to determine if drugs have been in contact with the skin
8. Assessment of muscle tone
9. Take pulse from a third pulse point as well as search for injection sites
10. Observe your actions and reactions when questioned about possible drug use
11. Make suggestions as to what type of drug or drugs are responsible for the impairment
12. Request a DUI chemical blood and urine screenings.

Most DRE examinations are not conducted roadside, Instead, they can make better observations if the examinations are held at the police station or other well-lit and supervised areas.

3. DUID Trials in California
A DUID trial is similar to an alcohol related DUI trial in that the arresting officer is normally asked to testify very early on in the case. He is questioned concerning why he believed you to be impaired and what prompted him to involve the DRE once you were detained. He or she will more than likely refer to one or more of the following areas:

• your inability to safely operate your vehicle
• outward physical appearance
• physical responses to one or all of the field sobriety tests

In other words, any action or reaction considered to be “wrong” or unfavorable will be pointed out to the judge and jury so they are able to understand what is happening.

3.1. Standard Testimony Provided by a Police Officer

An arresting officer will more than likely be asked to describe exactly how you were driving and whether or not he or she deemed it safe for you to be on the roadways. They will be asked to describe any signs and symptoms they noticed that gave them the indication you were under the influence of drugs and alcohol. These signs include slurred or incoherent speech, flushed face, red/watery eyes and the inability to navigate or walk in a steady and upright manner.

They will also be able to describe how you performed during Field Sobriety Tests. In the event, you failed, they will be required to be very descriptive. Because a BAC reading from a breathalyzer only shows blood alcohol content, it may suggest drug use if there is no substantial BAC reading but the defendant still shows sign of intoxication.

In California, most law enforcement officers have little drug-related training. When no DRE officer is available to come to the scene of a possible DUID stop, a police officer may have to perform the bulk of the screening. A good defense attorney can turn this around and make it work quite well for the defense. Since drug recognition is not part of regular law enforcement training, there might be a possibility of having all drug related charges dropped to the police officers lack of experience.

3.2. Testimony of the DRE

Testifying in court is an important part of a drug recognition expert's job. Part of their training involves working with prosecutors and learning how to be effective speakers. As part of their training they are taught to communicate what they witnessed in a persuasive and forthright manner.

Without accurate, reliable testimony many drug charges would have to be dismissed due to lack of evidence. Much of the testimony presented will revolve around the DRE's findings and what he substances he believed you were using. His or her testimony will be extremely influential and many will lay their credentials on the line to back up the information they are presenting. It is their intent to prove without any doubt your degree of impairment had little or nothing to do with alcohol use (BAC), confirmation that drugs were responsible for the impairment and that a medical condition did not play a role in your behavior and determine you were legally impaired due to drugs from one or more classifications or categories.

Part of the DRE's testimony will include the results of their 12-step assessment program. While all steps in the process are important, most prosecuting attorneys will focus on steps 11 and 12. Step 11 concerns the category or type of drugs or medications you were taking and to what degree they were responsible for your impairment. Step 12 will include the results of any drug screenings you were subjected to. Both urine screen and chemical DUI blood screens will be reviewed and assessed to determine if the levels of drugs in your system was sufficient to cause impairment.

The categories of drugs a DRE will cover in Step 11 include:

• depressants that suppress the nervous system, such as valium
• stimulants that affect the nervous system, such as meth or cocaine
• marijuana
• analgesics that are potent enough to be considered narcotics, such as heroine or codeine
• hallucinogens, such as LSD and mushrooms
• “date rape” drugs, such as GHB
• any drug not listed within these categories that has the ability to affect your nervous system, muscles or brain activity, essentially behavior and demeanor

Unlike a report that lists a persons' BAC, the results related to drug screens used in Step 12 will only reveal a positive or negative response for drugs. In some cases, the prosecutor may ask to have some of the collected blood sample to be retested to obtain what are known as quantitative results. This will provide the court with a better idea as to how much of a drug was actually consumed and to what degree you were impaired. A “blood split” test can be performed that details each type of drug and the amount found within the system at the time your blood and urine were collected.

4. DUID Defenses

Most legal defenses in the state of California can be applied to both drug and alcohol related DUI cases. Each one has its own merit and should be carefully considered by your criminal defense attorney. They include:

• disputing the police officers traffic stop claiming he had no probable cause
• determining whether or not you had been properly Mirandized before the interrogation process
• all protocols and procedures were followed in accordance with California Title 17 procedures which control how breath, blood and urine samples are collected, analyzed and stored as part of the testing process.

4.1. Specific defenses related to DUID cases

In California, there a several defenses that pertain only to drug use or drug related driving charges. The first involves the reasoning that just because drugs are in your system, it doesn't mean they had the ability to impair you or bring you under their influence. When drugs are detected, no levels are given, just an indication that they are present. A person who has taken a specific drug for a long period of time (such as prescription pain killers), has built up a certain tolerance for the drug which actually will diminish its effectiveness.

“Tolerance” pertains to the constant use of medication to the point that the body needs increasingly more of it to achieve the desired result. Once an immunity has been developed, the initial feelings and responses associated with impairment eventually diminish. Another issue with tolerance is a drug's life span. For some drugs, little trace is left after a few short hours, while others may stay in the body for varying lengths of time ranging from days to months. That accompanied with the fact that a person's physical makeup (height, weight, tolerance levels and metabolic rate) will all play a role in how quickly a drug leaves their system.

Innocent Explanation
Another common and well respected defense is one in which a person's so-called impairment is the result of an “innocent explanation”. Impairment can be the result of several natural physical and emotional responses including allergies, illness, debilitating injury, extreme fatigue and nervousness due to stress and exhaustion. While these conditions can explain your actions and behavior, they are in no way related to drug or alcohol use. Visible signs of impairment can be directly related to specific health conditions and exhaustion even when no drugs are present.

Conditions used to identify signs of drug use such as horizontal gaze nystagmus can occur naturally in individuals with certain eye conditions. Even though the condition is apparent, it may nor be indicative of drug use. Dilated pupils are another indicator. Your pupils are constantly changing in relation to light, dark, nervousness and excitement. They can also be attributed to a recent head injury or concussion. In cases where poor balance or coordination are noticed, several factors may come into play. Old injuries to the legs or hips, improperly fitting footwear or disorders of the inner ear that affect balance may be to blame for a person's inability to successfully complete field sobriety tests.

Accuracy of Chemical Tests
In the realm of drug testing, not all results are accurate. Several things can contribute to an inaccurate or misleading test result, especially when dealing with chemical testing. A positive result can be received through the use of contaminated medical equipment, improper collection and storage procedures or questionable handling of the samples once they have been taken into the possession of the lab.

5. California DUID: Penalty and Punishment
Penalties vary in California when it comes to driving under the influence of drugs. Several factors are taken into consideration including the number of prior DUIs, your personal criminal history and the circumstances surrounding the present case. Most first, second and third DUI offenses are often charged as misdemeanors unless there is bodily injury, death or substantial property loss involved. The fourth offense and any received after will more than likely be charged as felonies.

In the case of a first time offender with little or no extenuating circumstances to drive up the charges, a misdemeanor DUI charge would result in approximately $1,800 in fines and fees ($390 maximum fine, plus court costs, fees and drug class costs), 3 to 5 years informal probation, the possibility of a maximum of six months in jail, a six month suspension of your California driver's license and a minimum, mandatory 3-month drug education class. You must attend and complete the requirements for the California DUI school in order to fulfill your court appointment obligations.

Penalties for your second and third DUI offenses are similar to that of the first, but will continue to become increasing harsh with each repeat appearance in the judge's court room.

Two points to consider when researching a DUID defense are:

• If it is determined you are under the influence of a controlled substance and in violation of Health and Safety Code 11550, you will be charged with that offense in addition to the DUID. A controlled substance in the state of California includes PCP, cocaine, heroine and several other illicit drugs.
• Taking a breathalyzer test and then refusing to submit to a urine screen will cause you to be charged with a refusal. Refusing to submit to a DUI chemical blood or breath test is a violation of the state DUID laws and will result in a mandatory 48 hour jail stay as well as one year suspension of your driver's license.

Individuals who have been found to be in violation of California Health and Safety Code 11550 HS must serve a mandatory 90 day minimum stay in the county jail. First time offenders can avoid the jail time by agreeing to participate in a drug diversion program. Instead of mandatory jail time, the offender agrees to attend and complete one of several state approved drug programs. Proposition 36, California drug court and PC 1000 drug diversion program are all acceptable and can be used to avoid the mandatory jail sentence. Once the diversion program is completed and the court has determined that you have complied with all of the instructions in your sentencing decree, the charges will be dismissed and removed from your record.

Due to the way the courts view DUIs, individuals who are charged with both a DUI and a drug charge would not be eligible for the drug diversion programs. In order for you to be able to accept the drug diversion option, your attorney would have to find a way to get the DUI charges dismissed.

California Justice Law Group can help you understand the legalities involved with DUID charges. Hiring a qualified attorney who specializes in DUI and drug related criminal charges is in your best interest once you have been found in violation of one of California's drug laws.