A charge of driving under the influence can involve alcohol, drugs or both. California Vehicle Code 23152(e) makes it a crime to drive under the influence of drugs. Driving under the influence of drugs occurs when the drugs impair the driver to the point that he/she can no longer drive like a sober driver under similar circumstances. If you drive under the influence of any drug, whether prescription or illegal, you subject yourself to prosecution for DUI.
The biggest difference between a DUI involving alcohol and DUI involving drugs is how the offenses are investigated. A drug DUI investigation involves the use of a drug recognition expert (“DRE”). A DRE is a police officer trained to recognize impairment in drivers under the influence of drugs other than, or in addition to, alcohol.
The Los Angeles Police Department originated the program in the early 1970s when LAPD officers noticed that many individuals arrested for DUI had very low or zero alcohol concentrations. The LAPD DRE program attracted the National Highway Traffic safety Administration’s (NHTSA) attention in the early 1980s and the two agencies collaborated to develop a standardized DRE protocol, which led to the development of the DRE Program.
During the ensuing years, NHTSA and various other agencies and research groups examined the DRE program. Their studies demonstrated that a properly trained DRE could successfully identify drug impairment and accurately determine the category of drugs causing such impairment.
Unlike an alcohol-related DUI, there is no blood alcohol concentration for a drug DUI, and it can be difficult to prove in court. Whether alcohol related or drug related the penalties are similar under California DUI laws.
1. How does a DRE test for drugs?
Pursuant to his/her training, a DRE has several tests that can be given to investigate the presence of drugs. First an officer will conduct a breath test and if the impairment is consistent with the results of the breath test then the officer will not normally call the DRE. If the impairment is not attributed to the breath test results the officer will then call the DRE in. The DRE will look at your behavior and appearance. He/she will conduct a preliminary examination to ascertain whether you are suffering from an injury or condition unrelated to drugs. The DRE will also perform the horizontal gaze nystagmus (HGN) test to look at the condition of your eyes. The DRE will have you perform psychophysical tests that are like the field sobriety tests. He/she may take your vital signs and take several pulse readings. After completing the evaluation, the DRE normally requests a urine, blood and/or saliva sample from the subject for a toxicology lab analysis. The DRE protocol is a compilation of tests that physicians have used for decades to identify and assess alcohol- and/or drug-induced impairment.
Like an alcohol DUI, a first offense is a misdemeanor in California. The penalty is the same as an alcohol DUI. If convicted of a first violation, you can face imprisonment in the county jail for not less than 96 hours but no more than 6 months, pay a fine of not less than $390 plus penalty assessments but not more than $1,000 plus penalty assessments, suspension of your driver’s license and drug and/or alcohol school. A defendant likely is placed on probation following a conviction, and serving a minimum jail sentence.
3. What is the drug and/or alcohol school?
In any county where the board of supervisors has approved, and the State Department of Alcohol and Drug Programs has licensed, a program or programs described in Section 11837.3 of the Health and Safety Code, the court shall also impose as a condition of probation that the driver shall enroll and participate in, and successfully complete a driving-under-the-influence program, licensed pursuant to Section 11836 of the Health and Safety Code, in the driver’s county of residence or employment, as designated by the court.
DUI program providers must be licensed by the State of California. Most first-time DUI offenders with a BAC of under 0.20% must complete a three-month, 30-hour DUI program. This program consists of counseling and alcohol/drug education. Sometimes, the judge will determine that a longer program is necessary.
And first offenders with a blood alcohol concentration of 0.20 or higher must complete a nine-month, 60-hour program.
4. Can other punishments be imposed for a drug DUI?
Depending on the circumstances in each case, a judge may order as a condition of probation that the defendant attend Narcotics Anonymous meeting. You may also be required to submit to chemical tests of your blood, breath or urine.
Yes. If you have consumed a drug, even if purchased legally as an over the counter drug and you drive subject to being impaired by it you subject yourself to prosecution for DUI. The prosecution would have to prove that you were impaired by the substance at the time you were driving. A DRE would be used to determine whether the drug impaired your mental and physical faculties.
6. Do I have to submit to a chemical test?
In California, DUI’s are implied consent offenses. Therefore if you are driving in California you are giving implied consent to be tested for alcohol or drugs if arrested for DUI. If arrested you may be offered a breath or blood tests. If you refuse a chemical test it will result in penalties additional to regular penalties for DUI, one of which is an automatic revocation of your license of 1 year.
7. What are possible defenses to a drug DUI?
The defenses for a drug DUI may be similar to an alcohol DUI. An experienced attorney can challenge the officer’s administration of tests or challenge the validity of a chemical test. Each case is different and it is important to explore all available defenses.
Aggravating Factors for DUI
In determining your sentence the judge will look at the circumstances in your case. The prosecution will introduce any aggravating factors it has to increase your sentence. Likewise, a defense attorney will present mitigating evidence to lower your sentence. Some aggravating factors include if you caused an accident, having a high blood alcohol content (usually over .15%), a refusal of a chemical test, or having children in the car during the offense.
Having a Child in the Car
Having a child in your vehicle when driving under the influence of drugs or alcohol is an aggravating factor that will increase your punishment. Typically this results in an increase in the jail time served. However, having a child in the car also can result in a charge of child endangerment, punishable under the California Penal Code.
Child endangerment is defined as any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered.
Child endangerment is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.
In Recognition Of Our Work, We Have Been Recognized
If you are arrested for DUI and the prosecution alleges that you were on drugs, you will be charged with only the driving under the influence charge. However, if you refused to take the blood or urine test after you were arrested, the prosecution will allege a sentencing enhancement that you refused a required test. This has the same consequences as the refusal allegation in a DUI alcohol charge. The DMV will suspend your license for one year without the ability to obtain a restricted license if you lose your DMV hearing. A DUI charge, whether or not it involves drugs, is a serious charge that requires the knowledge of a DUI defense lawyer.
We can fight for your case, both at a DMV hearing regarding the refusal to try and preserve your license and at the criminal proceedings to assert any available defenses. Our attorneys have the experience and knowledge necessary to fight your DUI case. For a free case evaluation contact our office today: 818-351-9555.