DUI Drugs

Driving Under the Influence of Drugs is a crime in California. It refers to driving while any drug (legal, illegal, or prescription drugs) has impaired your judgment and actions. You can also be charged with a DUID if you combine alcohol with drugs. In most cases, Driving Under the Influence of Drugs is punished as a misdemeanor. When you are convicted of a felony DUID, it means that you have four subsequent misdemeanor DUIDs, have a prior felony, or you caused injury or death to another person. DUID can be Driving Under the Influence of Drugs (California Vehicle Code VC 23152 (f)) or driving under the combined influence of drugs and alcohol (VC 23152 g).

California defines a drug as any substance other than alcohol that can affect a person's brain, muscles, or nervous system, causing significant impairment that will affect his or her ability to drive. You are impaired if you cannot exercise similar caution that a sober person would exercise when driving under similar circumstances.

A drug could include:

• Illegal substances such as cocaine, heroin

• Legal drugs like marijuana

• Prescription medication

• Over the counter medications

You can get charges for Driving Under the Influence of Drugs even if you need the drug for your health.

When you are arrested for Driving Under the Influence of Alcohol, it is possible to detect the presence of alcohol through a breath test. However, no equipment exists for testing the level of drugs in the body.

The arresting officer has to rely on identifying symptoms of intoxication. The officer can stop you if they notice signs of drunk driving such as driving without headlights or trouble keeping your lane. In some cases, you will be stopped at a DUI checkpoint, where investigation for DUI typically begins.

The officer will give begin a DUI investigation if they notice any signs of intoxication, such as:

• Alcoholic breath

• Flushed face

• Watery eyes

The officer may also request you to take a preliminary alcohol screening test in addition to asking you about any drug or alcohol use. The officer will also check inside your vehicle for any drugs or drug-related paraphernalia.

If there are no traces of alcohol in your breath or the BAC, the officer may suspect the influence of drugs.

A drug recognition expert (DRE) is an officer trained in identifying symptoms of narcotic intoxication. The arresting officer will call a DRE who runs the 12-step evaluation process. The steps include:

1. Conducting a breath alcohol test to ascertain that the signs of intoxication are consistent with the BAC level.

2. The DRE will interview the arresting officer to review the test results, the conditions of arrest, your behavior and appearance, and your driving pattern. The DRE will also check for other evidence that could indicate drug use.

3. The DRE will then conduct a preliminary examination and first pulse by checking whether the signs of intoxication could be an indication of a medical condition that requires medical attention, or it is a drug-related case.

4. If it is a drug-related case, the DRE will proceed to conduct an eye examination checking for vertical and horizontal gaze Nystagmus. When under the influence of drugs, most people will fail the two tests.

5. The DRE will test for the attention and physical coordination using tests such as walk and turn, one-leg stand and the finger to nose test.

6. He or she will then take your vital signs, including blood pressure, temperature, and pulse.

7. The DRE will subject you to different lighting conditions to examine your pupil size and the reaction of your eyes to light. He or she will then check your mouth and nose for signs of drug consumption.

8. You will go through muscle examination to check whether your muscles are too rigid or too flaccid from the effect of drugs.

9. The DRE will check for injection sites, which are telltale signs of recent drug use and the third pulse.

10. The DRE will make other observations and ask you about your drug use (they will have to read your Miranda rights first, in compliance with the Fifth Amendment).

11. The DRE will then determine, based on his or her observation, training, and knowledge on symptoms of drug use to determine whether you are impaired. The DRE can also suggest the drug(s) that have contributed to your impairment.

12. The final step involves requesting a mouth swab or urine for a drug test, which is taken to a toxicology lab for examination.

If you are arrested for a DUI involving alcohol, you can choose between a breath test and a blood test. For a DUID, breath tests are of little use in determining whether you are under the influence. Some of the tests used include saliva, urine, or blood test.

A saliva test involves the collection of a small amount of saliva from your mouth. If you had taken drugs such as opiates, cocaine, marijuana, amphetamines, ecstasy, or meth in the last 72 hours, the saliva would test positive for drugs. Saliva tests are usually fast and non-invasive.

If the DRE suspects you are under the influence of a combination of drugs and alcohol, you may be requested to give a urine sample for testing. A urine test is usually less accurate compared to a blood test and could show exaggerated results. Usually, drugs take a longer time to metabolize from the body and may still show up in a urine test, days after you took the drug.

Blood tests are the most accurate for detecting the type and amount of drug in the system. Once your blood sample is collected, it is submitted to a toxicology lab to test for the presence of drugs.

If the results come back as positive, the lab will analyze the quantity of each drug. The quantity of drug can be used to gauge the extent of impairment characteristics for that quantity.

A plea bargain is a pretrial motion during which your lawyer can request for a lesser charge. Your lawyer will inform you of the advantages and disadvantages of going to trial. If you agree to plea bargain, you will plead guilty to being under the influence of a controlled substance. The court will likely agree to a plea bargain if it is your first offense.

Under HS 11550, you can qualify for a diversion program for one year. Once you complete the program successfully, your charges will be dismissed. However, you will face a county jail term of one year if you do not complete the program.

Some of the diversion programs you can participate in include:

• Diversion program for simple possession PC 1000

• Diversion program for non-violent crimes, Prop 36

• California drug court

If your plea bargain is rejected, or you refuse to plead guilty to being under the influence of a controlled substance, your case will proceed to trial.

When you are arrested for a DUI with drugs, and there is evidence supporting the charge, you will be arraigned in court. The court will read you formal charges to which you can plead not guilty, guilty, or no consent. If you plead guilty, you will receive sentencing at that point. If you plead “not guilty” or “no consent," the court will set dates for the next proceeding. It is now upon the prosecution and the defense to prepare for the case. It is advisable that you hire a DUI attorney to help you with your defense.

When the trial begins, it is upon the prosecution to prove beyond a reasonable doubt, that you committed the crime. During the trial, the prosecution will call the arresting officer(s) and the DRE to give their testimony.

The arresting officer will provide details of how they stopped you and the reasons for stopping you. In his or her testimony, the arresting officer must explain the signs of intoxication that you displayed, which were indicative of intoxication. The signs include:

• Your manner of driving

• Your performance of a PAS breath test and field sobriety tests

• Your physical signs of intoxication such as bloodshot eyes, slurred speech, flushed face, and an unsteady gait

If the arresting officer called a drug recognition expert, he or she would be called to give their testimony. Besides providing information about their training and background information in drug recognition, the DRE will inform the court about his or her responsibility to:

• Confirm that your impairment was from another cause other than alcohol

• Confirm that you were under the influence of drugs and that your behavior is not related to mental illness.

• Confirm his or her conclusion that you were under the influence of one or more drug categories.

The testimony of a DRE has a significant bearing on how your case will turn out. The DRE will also explain the process he or she used to arrive at the conclusion.

The results of a blood test can be used to corroborate the testimony of the DRE. Usually, an expert witness will testify to show the level of impairment the quantity of drugs found in the system suggests. The expert witness provides an analysis of how the amount of drug in the body of a person affects their ability to drive or make sound decisions.

After the prosecution presents its case, the defense will counter the prosecution’s case, often by cross-examining witnesses and presenting legal defense that creates doubt on the prosecution’s case.

Hiring a DUI attorney is usually one of the best choices you can make when you are facing DUID charges. The attorney can challenge many aspects of the prosecution’s case using time-tested defenses that have worked for other defendants. Some of the common defenses include:

1. The arresting officer had no probable cause for stopping you or initiating a DUI investigation

2. You were not read you Miranda rights which protect you from self-incrimination

3. The blood or urine sample was not collected, stored and analyzed as per the legal requirements

4. You are tolerant of drugs, meaning that the concentration found in your blood or urine did not cause impairment

5. The drug detection window: some drugs can remain in the bloodstream for a longer time even when you are not high. The detection window depends on your height, weight, history of drug use, your tolerance level, your metabolism, and how you ingested the drug.

6. You have a medical or physical condition that mimics the symptoms of drug impairment. Some of these conditions include fatigue, injury, and anxiety. Other symptoms such as poor balance, pupil size, and horizontal gaze Nystagmus can be a result of other innocent reasons other than drug impairment.

7. The chemical tests taken were inaccurate. Some of the causes of inaccuracies include:

• Contaminated equipment

• Improper collection of blood samples

• Poor storage of samples

• Mishandling samples

California DUI laws require that a sample of the blood collected be set aside for retesting by the defendant. The lawyer can file a blood split motion, which authorizes the release of the blood sample. Your lawyer can use the blood sample to have an independent analysis conducted, usually at your expense.

The defense will use the results of the sample to cast doubt on the prosecution’s case, especially where the results do not match, and are in favor of the defendant.

Your lawyer can also use the sample to show poor storage or handling of the sample, which can discredit a prosecutor’s evidence. Other evidence that can help fight a DUI Drug charge includes the contamination of the sample or the use of the wrong sample.

Depending on the strength of the prosecution’s case, the evidence, and the defense, the jury can decide that you are guilty, innocent, or have the charges dismissed for insufficient evidence.

When you are found guilty for a DUID, the penalties include:

For a DUID first offense:

• Three to five years of misdemeanor probation

• Fines of up to $1800

• At least six months DMV license suspension

• Three months in a California DUI school

• You may also be sentenced to a maximum of six months in county jail

For a second DUID conviction within ten years:

• Up to one year in county jail

• Two years driver's license suspension

• Up to 30 months in a California DUI school

• Up to five years of informal probation

• Fines of up to $2000

Subsequent DUI offenses have stricter penalties. If you are convicted for four DUIDs in ten years, you are guilty of a felony. You also get a felony charge if you have a prior felony conviction or caused death or injury to another person. The penalties for a felony DUID include:

• 16 months to four years in county jail or state prison

• Fines between $1,000 and $5,000

• One year suspension or revocation of your driver’s license

• Formal probation

The existence of aggravating factors can lead to an enhanced sentence. Some of these circumstances include:

• Prior DUI, DUID or wet reckless convictions

• DUID with a minor in the car

• DUID causing injury, death or damage to property

• DUID with reckless driving or speeding

• Refusal to take a chemical test, which results in a one-year license suspension and a mandatory sentence of 48 hours in county jail.

The judge will also consider other factors when deciding on the penalties for your crime. These factors include:

• Your criminal history

• The circumstances of the crime

• Whether there we injuries

• Whether you can benefit from a drug treatment program

1. Driving While Addicted VC 23152 (c)

   It is illegal to drive in California while addicted to any drug. In most DUI with drugs cases, the prosecution can charge you with driving while addicted if you test positive for drugs but are not impaired.

   To be convicted of a VC 23152 (c) violation, the prosecution has to prove that:

   • You drove, and

   • While driving, you were addicted to the drug(s)

   Being addicted to a drug means that:

   • You are dependent on the drug and experience withdrawal symptoms without it

   • You require larger doses to achieve the same results (you have developed a tolerance for the drug)

   • You are emotionally dependent on the drug leading to compulsive use

   Driving while addicted is punished in a similar way to DUI crimes. If you are currently enrolled in a California drug treatment program, you cannot be legally charged with driving while addicted.

2. Possession of A Controlled Substance HS 11350

   The Health and Safety code prohibits the possession of a controlled substance such as illegal drugs and prescription medication. If you are found in possession of prescription drugs, you have to show proof of a valid prescription. For you to be convicted of possession of a controlled substance, the prosecution has to prove that:

   • You had control of or the right to control the substance

   • You knew the drugs were present

   • You knew the drug was a controlled substance

   • The drug was in sufficient amounts to be used as a controlled substance

   The penalties for possession of a controlled substance depend on whether the crime is charged as a misdemeanor or a felony. As a misdemeanor, the penalties include:

   • Up to one year in county jail

   • A maximum fine of $1000

   Sixteen months, two or three years in state prison, and fines for a felony charge.

   Your lawyer can request for alternative sentencing through a diversion program. When you complete the program, the court dismisses the charges against you.

3. Possession of Drug Paraphernalia

   The California Health and Safety code HS 11364 prohibits the possession of instruments or paraphernalia used for unlawfully injecting, smoking or consuming a controlled substance. Possession of hypodermic needles or syringes for personal use is not a crime in California, as long as you can prove that you got the needle and syringe from an authorized source.

   When charged with an HS 11364 violation, the prosecution has to prove that:

   • You were in control of or had the right to control the paraphernalia

   • You were aware of its presence

   • You knew the purpose of the paraphernalia

   The penalties for possessing drug paraphernalia include a maximum jail term of six months in county jail and fines not exceeding $1000.

4. 4Driving Under The Influence Of Marijuana VC 23152 (f)

   The use of marijuana for recreational purposes is legal in California. However, Driving Under the Influence of Drugs is illegal. The prosecution will have to prove that:

   • You were driving

   • You were under the influence of marijuana, and

   • You mental and physical capabilities were impaired to the extent that you could not exercise caution and judgment of a sober person

   You can be convicted for Driving Under the Influence of Marijuana even in the absence of a chemical test. The prosecution can rely on:

   • Your driving pattern

   • Physical signs of intoxication

   • Your performance on field sobriety tests

   • The presence of marijuana and drug paraphernalia in the vehicle

   • Evidence of addiction to marijuana, and

   • The testimony of a drug recognition expert

   VC 23152 (f) is punished as DUI misdemeanor, felony, or wobbler offense depending on the circumstances of the crime, aggravating factors, and your criminal history.

A DUI attorney, who has the understanding and experience in handling DUI Drug cases, is a great investment when you are facing DUI Drug charges. On top of this, they should be empathetic with your situation and be available to provide you with relevant information and legal advice to help with your case. The San Jose DUI Attorney Law Firm is experienced in handling DUI Drug cases in San Jose and the surrounding areas. We leverage our legal knowledge, expertise, and network to seek the best outcome for our clients. Contact us today at 408-777-6630 for legal representation.