DUID — Driving Under the Influence of a Drug (California Vehicle Code section 23152(f): https://codes.findlaw.com/ca/vehicle-code/veh-sect-23152.html) is a variation of the following offenses:
First-Time DUI (Driving Under the Influence) (California Vehicle Code section 23152: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23152.html);
Second DUI (Driving Under the Influence) (California Vehicle Code section 23540: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23540.html); and
DUI (Driving Under the Influence) Causing Injury (California Vehicle Code section 23153: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23153.html).
Although possessing certain drugs for personal use is merely an infraction in California, you may be prosecuted under DUID law if the police suspect you consumed or ingested drugs then drove a vehicle, just as though you were drunk driving. A DUID offense is harshly prosecuted since the offense typically places other people in danger. A conviction could lead to incarceration, the suspension of your driving privileges, hefty fines, and DUID school, among other penalties.
California has two statutes that criminalize driving while intoxicated with narcotics. They are:
See Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”), CALCRIM Number 2110 (“Driving Under the Influence — Veh. Code § 23152(a), (f), (g)”): https://www.justia.com/criminal/docs/calcrim/2100/2110/;
CALCRIM Number 2112 (“Driving While Addicted to a Drug — Veh. Code § 23152(c)”): https://www.justia.com/criminal/docs/calcrim/2100/2112/
California law defines a drug as any substance that is not alcohol that may affect the brain, muscles, or nervous system of someone that would substantially impair their capability to operate a vehicle like an ordinarily careful and sober individual would operate under the same circumstances. Therefore, a drug includes:
However, any drug that impacts a person’s brain, muscles, or nervous system forms the basis for a DUID charge, even if the driver legitimately needs it for their health.
California does not have a stipulated limit for narcotics concentration in the bloodstream corresponding to the 0.08% blood alcohol content (“BAC”) stipulated limit for DUI or alcohol cases. Experts have not agreed on what drug concentration in the blood makes a person impaired to the point of being incapable of driving. Therefore, California statutes merely dictate it is against the law for a person to operate a vehicle while:
DUID investigations typically start with being pulled over by law enforcement. If you seem impaired, the police officer will commence a driving-under-influence probe. During the investigation, the police may:
If your BAC is lower than the applicable lawful limit but you still appear intoxicated, the law enforcement officer might suspect you have been using drugs. The officer may then contact a Drug Recognition Expert (“DRE”) to the crime scene and evaluate you. The officer could also do a mouth swab to determine if you have drugs in your system.
See Drug Recognition Expert (DRE): https://www.chp.ca.gov/programs-services/for-law-enforcement/drug-recognition-evaluator-program/schedule-of-classes/dre
A DRE is an officer who has undergone special training to help the police identify when a person is intoxicated with drugs. Not all counties in California have drug recognition experts. Thus, a motorist suspected of drugged driving might or might not be subjected to an assessment by a DRE.
Finally, and not surprisingly, refusing to provide a breath sample to the officer will likely result in an additional charges and penalties, including automatic suspension of your driver’s license.
See Refusal to Submit to DUI Chemical Test (California Vehicle Code section § 23612: https://www.justia.com/criminal/docs/calcrim/2100/2130/)
CALCRIM Number 2130 (“Refusal – Consciousness of Guilt — Veh. Code § 23612”): https://www.justia.com/criminal/docs/calcrim/2100/2130/
After the police officer believes they have probable cause to arrest you for DUID, they can take you into custody. DUID arrestees do not always have to be told their Miranda rights immediately. Miranda rights are only read in DUID cases when:
After you have been arrested for a suspected DUID, your blood sample will be taken for toxicology screening. The screening identifies any controlled substance detected in your bloodstream.
The screening typically does not reveal the drug concentration detected. It merely indicates whether you tested negative or positive for the existence of the drug. If you test positive for drugs, the laboratory can conduct a quantitative analysis to determine the quantity of the substance(s) in your bloodstream.
However, as we mentioned, the California DUID statutes do not set a specific limit for narcotics. And although the tests of the blood tests are not irrefutable, the prosecution, with help of an expert witness or DRE, can still refer to them to show:
However, because not any of the above is deemed conclusive concerning impairment, the prosecuting attorney will often rely highly upon:
The following will happen at a typical DUID court trial:
The Police Will Testify
A DUID-related case starts with the arresting officer’s testimony. The officer will testify regarding why they perceived the defendant to appear impaired. The facts the prosecution will draw from the officer’s testimony include:
Arresting officers typically attest the accused was not driving carefully as a sober driver would. They will also generally attest that the accused had objective intoxication symptoms, like red or watery eyes, a staggering gait, flushed face, or slurred speech. If the alleged offender submitted to a FST, the arresting officer is likely to say the defendant failed to do the tests as they demonstrated/explained.
Positive breath tests may not be as helpful in DUID cases as in DUI cases. If the arresting officer had administered a breath test during a traffic stop, it could not have shown the presence of blood alcohol. However, the police will likely testify that they suspected narcotics had to have been used because alcohol did not explain the impairment symptoms. This testimony is helpful to the prosecution when the accused argues the legal defense of arrest without probable cause.
The DRE Will Testify
The DRE’s account is often the most compelling proof in a Vehicle Code section 23152(f): https://codes.findlaw.com/ca/vehicle-code/veh-sect-23152.html) or Veh. Code section 23152(g) DUID case. The Los Angeles County District Attorney’s Office (D.A.’s Office) (https://da.lacounty.gov) works closely with DREs to ensure that they provide persuasive testimony.
The DRE starts by testifying in detail about their qualifications and training. They then testify about their three primary responsibilities:
Then, to prove the accused was impaired with drugs, the DRE comprehensively testifies concerning the twelve-step assessment process the accused underwent during the DUID investigation stage. Particularly, the DRE focuses on the evidence corroborating their conclusion regarding what classification of drugs had made the accused impaired. For example, they might conclude the accused had been impaired by:
A DUID case will be trickier to prove if no DRE is involved. A few law enforcement officers have done drug recognition training. Without this kind of testimony, the DUID charges will possibly be lowered or dismissed.
DUI Chemical Blood Test Results
Once the DRE and arresting officer have testified, the prosecuting attorney will introduce the blood test results. There are two forms of DUI chemical blood tests:
An expert witness will then attest to the drug amount in the accused’s system.
Several general DUI legal defenses apply to all DUI offenses, including DUID. These defenses include:
We also utilize legal defenses specific to DUID charges. The most compelling of these defenses is that the existence of drugs in a person’s bloodstream does not automatically mean they were intoxicated. No scientific relationship exists between the drug quantity in a person’s system and their impairment. Drugs affect some people more than others. Also, with time, people experience increasing drug tolerance to the narcotics they use regularly.
The drug detection window refers to the period it takes for a given drug to be detected in a person’s urine or blood after ingestion or use. Generally, this period is longer than when a person remains high. The exact detection window for drugs can be impacted by various factors like the user’s weight, height, metabolism, tolerance, method of drug ingestion, and history of drug use. These and other factors affect the period a person will be intoxicated with a narcotic and the period the drug will stay in their system.
Under the state DUI laws, the authorities must keep a percentage of the blood they draw for chemical testing for a maximum of a year for the defendant to retest. This means you and your attorney can perform your own independent quantitative analysis.
To acquire the blood to retest, your lawyer will request it from the prosecutor or file a blood split motion. The arresting agency then sends part of the blood sample to a lab of your choice for independent testing (at your expense).
If the test results return positive, you need not show the prosecution that evidence. Your attorney can simply disregard them. But your attorney can obviously use the results as a defense if they are negative.
Even when urine or blood test results are positive for controlled substances, they are not always correct. Chemical tests conducted in DUID cases could be rendered invalid due to:
Several physical and medical conditions can resemble drug impairment signs. Prevalent causes of similar symptoms include sickness, allergies, fatigue, inadequate sleep, injury, diabetic ketoacidosis, and nervousness or anxiety. None of these explanations are related to narcotics impairment.
Even the recognized drug impairment signs can have a different explanation than narcotics use. For instance:
DUID is typically charged as a misdemeanor offense. It will generally be considered a felony when:
See Second DUI (Vehicle Code section 23540: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23540.html).
If someone else did not suffer injury, jail time might not be imposed for first-time DUID offenders. Instead, the consequences upon a conviction would generally include:
In worst-case scenarios, the consequences will include a jail sentence not exceeding six months.
The consequences for a second/subsequent DUID offense generally include DUID school, probation, and fines. You will also face license suspension for a more extended period and a compulsory minimum incarceration period that will automatically increase with every subsequent DUID conviction.
Based on your criminal history and specific charge, the consequences for felony DUID can include:
In some instances, you may be subject to felony (formal) probation instead of all or some of the prison time.
The punishments for a DUID conviction in California vary significantly. Factors judges consider when sentencing are:
If convicted of DUID, you will typically not qualify for drug diversion. Although, a skilled DUI defense lawyer may convince the judge/prosecuting attorney to dismiss your DUID charges and let you plead to Being Under the Influence of a Controlled Substance (California Health and Safety Code section 11550: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=11550&lawCode=HSC. This would enable you, if you are a first offender, to enroll in a drug diversion program like:
See Proposition 36 Drug Treatment Diversion Program: https://lao.ca.gov/ballot/2000/36_11_2000.htm
California “Drug Court”: https://www.courts.ca.gov/5979.htmDrug Diversion (California Penal Code section 1000: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=1000).
These programs will allow you to enroll in pretrial counseling and education programs. The judge will drop your case if you complete the program you have joined.
The advantage of drug diversion programs is that there will likely be no conviction on your criminal record. The drawback is that a Health and Safety Code section 11550 carries a maximum one-year sentence in county jail. Therefore, the judge could impose an incarceration period if you do not complete treatment.
Vehicle Code section 23152(c) explicitly criminalizes driving while addicted to drugs. This obscure offense is a type of driving under the influence crime and has the same consequences as a DUID conviction. An exception exists when you are currently enrolled in a court-approved narcotics treatment program.
Vehicle Code section 23152(c) requires the prosecution to prove you were indeed addicted to narcotics and are not only a casual user. The prosecuting attorney often charges this crime when their DUID case is otherwise weak, but the defendant’s urine/blood test results were positive.
Lead LADALF attorney Ninaz Saffari has enjoyed considerable success in representing individuals charged with DUI-related offenses. For example, several years ago, she was able to get such a felony case dismissed at the preliminary hearing via a Motion to Dismiss (California Penal Code section 995: https://codes.findlaw.com/ca/penal-code/pen-sect-995.html) and a Motion to Suppress Evidence (California Penal Code section 1538.5): https://codes.findlaw.com/ca/penal-code/pen-sect-1538-5.html