According to California VC 23152(f), it is an offense to operate a vehicle while under the influence of drugs, commonly known as DUID. The law considers you under the influence if you cannot drive like a sober person under the same circumstances. You can face DUID charges if you are under the influence of any drug, whether legal or illegal. You can face DUID charges even if you are under the influence of prescription medication. If you face DUID charges in Bakersfield, CA, contact Koenig Law Office to help you fight the charges.
Facing a DUID charge? Discuss your legal options by calling us at (661) 793-7222 today.
Laws On Driving Under Influence of Drugs
Two laws in California make it a crime to drive under the influence of drugs:
- Vehicle code 23152(f)
- Vehicle code 23152(g)
The California VC 23152(f) makes it illegal to drive under the influence of drugs, while VC 23152(g) makes it an offense to drive while under the influence of both drugs and alcohol. According to the law, a drug is a substance or a combination of substances that could affect the brain, nervous system, or a person's muscles, impairing their driving capability. However, these substances do not include alcohol. The following substances qualify as drugs under California law:
- Illegal drugs like heroin, cocaine, and meth
- Legal drugs under California law, including marijuana
- Over–the–counter drugs like cold medications and antihistamines
- Prescription medication, even if the medicine does not make you high
Most DUID cases in California revolve around the driver being under the influence of Ambien, methamphetamine, marijuana, and prescription opiates like Oxycontin and Vicodin. Any medication that affects your nervous system could attract DUID charges even if the drug is necessary or beneficial to your health.
The Legal Limit Of Drugs
Unlike the case of alcohol, California law does not define the legal limit for drugs. Experts have never agreed on the specific concentration of drugs in the bloodstream that makes a driver impaired in operating a vehicle. Different drivers may respond differently to drugs. With so many types of drugs available, it is challenging to define the allowable drug limit in the system. Therefore, California law only outlines that it is illegal to operate a vehicle:
- While under the influence of drugs
- While under the influence of both drugs and alcohol
- While addicted to drugs, unless you are undergoing treatment for the addiction
A DUID Investigation And Arrest
The police initiate most DUID investigations with a traffic stop. The police may then begin a DUID investigation if a driver appears impaired. The investigation may include:
- Questioning the driver regarding their drinking or their drug use
- Looking for signs of physical impairment like constricted or dilated pupils
- Requiring the driver to perform specific field sobriety tests (FSTs)
- Checking the driver's vehicle to see if there is the presence of drugs or drug paraphernalia
If a driver appears impaired but their BAC limit is below the allowable limit of 0.08%, the police may suspect drug use. Therefore, the police often use a Breathalyzer to measure the driver's BAC level to help them determine if the driver is under the influence of alcohol. If the officer suspects that a driver is under the influence of drugs, they may request the help of a drug recognition expert, commonly known as DRE.
The DRE will come to the scene and evaluate the driver. The DRE may request you to submit to a mouth swab test to determine if there is a presence of drugs in your system. A DRE is a law enforcement officer who possesses special training. This special training enables the officers to recognize an impaired person or one under the influence of narcotics. Initially, the Los Angeles Police Department (LAPD) ran the DRE program. Currently, the California Highway Patrol (CHP) runs the DRE program. If you are suspected of DUID, you might not be subject to a DRE evaluation, especially if your county does not have DREs.
How A DRE Performs A Drug Impairment Evaluation
When a DRE arrives at the DUI stop scene, they take over the investigation. A drug impairment evaluation involves 12 main steps:
- The experts first consider the driver's BAC limits to ensure that they do not indicate that the driver is under the influence of alcohol
- The DRE interviews the arresting officer
- The third step involves checking the driver for physical signs of impairment. The DRE considers physical signs like pupil size, pulse rate, muscle tone because some drugs could make the muscles flaccid or rigid, traces of drugs in the nostrils or the mouth, and track marks on possible injection sites.
- The DRE also conducts an eye-tracking exam to check for HGN (horizontal gaze nystagmus). HGN is the involuntary jerking of the eyes, which occurs when someone is impaired with drugs.
- The DRE may also re-administer the FSTs, even if the arresting officer had administered the tests. The typical FSTs include the one-leg stand test, the Romberg balance test, the walk and turn test, and the finger to nose test.
- The DRE will also question the driver about drug use. As the driver responds, the DRE will be keen to observe the driver’s behavior.
- The DRE may also require the driver to submit to a urine test or a blood test.
Usually, the drug impairment evaluation takes place in a controlled and well-lit area, usually a police station. Unlike the typical DUI evaluation on the roadside, performing a DRE evaluation calls for a controlled environment for the best results. After performing an evaluation, the drug recognition expert forms an opinion regarding the cause of the driver’s impairment. If the DRE establishes that a driver is under the influence of drugs, they go ahead to determine the type of drug involved.
Whether A Driver Has Rights During A DRE Investigation
A driver does not have to undertake the field sobriety tests or answer the questions posed by the DRE. A driver has a right to exercise their right against self-incrimination as outlined in the Fifth Amendment. If the driver has not yet been placed under arrest, they will not face any penalties for a chemical test refusal. However, the driver may face penalties for refusing to submit to a chemical test if below 21 years or currently on DUI probation.
A DUID Arrest
The law enforcement officer may take a driver into custody if they believe there is probable cause for an arrest. In a California DUID case, the officer does not need to immediately read the Miranda rights to the arrestee, as many people assume. The officer will only have to read the Miranda rights to the driver if the driver is in custody with no freedom to leave or if the police intend to question the driver and the questions are designed in a way that can elicit incriminating responses. Some of the typical questions that could elicit incriminating responses include asking the driver about the drugs they took, asking the driver about the quantity of drugs consumed, or if the driver was impaired while they got into the vehicle. When asking these questions before arresting the driver, the police do not need to read the Miranda rights to the driver.
After arresting a person for operating a vehicle under the influence, the police give the driver the option of choosing between a DUI blood test and a DUI breath test. A driver should not refuse to submit to a DUI chemical test after an arrest. A driver must submit to a chemical test even if they had initially submitted to a PAS test. Refusing to submit to a chemical test could have adverse consequences, including suspending your driving license.
In some instances, the law enforcement officers may require you to submit to a breath test. A law enforcement officer may also require you to submit to a blood test if they feel that it will reveal evidence indicating you are under the influence. If you choose a breath test and your BAC is above the legal limit, the police will likely charge you with DUI. However, if the BAC reading is under the applicable limit but you still appear impaired, the police may order a blood test. Unless the police have a warrant, they cannot forcibly subject you to a blood test against your will.
The Use Of Blood Tests In DUID Cases
When you are arrested on suspicion of DUI, your blood test is sent for a DUI toxicology screen. The screen helps reveal any drugs that are present in your system. A toxicology screening test will not reveal the exact level of drugs in a driver’s system. It only reveals whether a driver tests positive or negative for drugs. The testing experts can perform a quantitative analysis if a driver tests positive for one or more drugs. The quantitative analysis will help reveal the level or the concentration of drugs in a driver's system. The California DUID law does not outline a specific drug threshold, unlike the per se DUI laws. This is because drug experts haven't agreed on a specific concentration of drugs in the bloodstream that makes a driver too intoxicated to drive. The results of a blood test may not be conclusive. However, they come in handy in helping the prosecutor and the DRE to prove that:
- There was the presence of drugs in a driver's system
- The amount or the concentration of drugs present
- The number of times the driver had taken the drugs
However, because a blood test is not conclusive, the prosecutor mainly relies on the following when assigning DUID charges:
- The arresting officer’s observations
- The DRE's observation, if any
- The expert witness testimony
During A DUID Trial
Several things usually happen during a DUID trial. The arresting officer testifies and points out why they perceived the driver to be under the influence of drugs. Some of the reasons why the arresting officer may assume that a driver is impaired with drugs include:
- If the driver shows physical signs of intoxication
- If a driver operates a vehicle in an unsafe manner
- The driver records poor performance in the PAS and field sobriety tests
The arresting officer will report to the judge or the jury everything that the driver did wrong. In addition to pointing out that a driver did not operate a vehicle with the caution of a sober person, the arresting officer may also point out that the driver showed signs of intoxication. Signs of intoxication may include:
- Slurred speech
- Red or watery eyes
- Unsteady gait
- A flushed face
If the driver submitted to field sobriety tests, the arresting officer might point out that the driver did not perform as expected in the field sobriety tests. In a DUID case, a failed breath test does not prove much. If an arresting officer administers a roadside Breathalyzer test and it shows little or no blood alcohol, the officer will use this as a reason to assume that the driver is impaired with drugs. This testimony is beneficial to the prosecutor if the defendant claims that the prosecutor did not have probable cause to arrest them for DUID.
The DRE’s Testimony
The drug recognition expert will also testify during a DUID trial. The DRE's testimony is the most crucial evidence in a DUID case. The District Attorney will probably work with the DRE to ensure that they testify persuasively. Usually, the DRE comes out as highly polished and professional. After testifying about their training and expertise, the DRE will then testify about:
- The fact that the driver’s impairment level was not caused by alcohol only
- That the driver was not suffering from a medical condition but was under the influence of drugs
- Confirming that the driver was under the influence of one or several drugs
While testifying, the DRE will outline the 12-step drug impairment evaluation they took you through. The DRE will also present evidence that made them conclude that a particular category of drugs impaired you. For instance, the DRE may conclude that a driver was under the influence of:
- Central nervous system stimulants like meth, cocaine, or amphetamines
- A central nervous system depressant like soma or valium
- A hallucinogen like magic mushrooms, ecstasy, or LSD
- A narcotic like Vicodin, heroin, or codeine
- Any other drug that is not contained in the categories outlined above
A DUID case is more complicated to prove if there is no DRE involved. If there was no DRE in your case, an experienced attorney could file a motion to suppress the testimony by the arresting officer regarding your drug impairment. Without expert DRE testimony, the prosecutor may be willing to reduce your charges and offer a DUI plea bargain.
Penalties of DUID
In most cases, DUID is a misdemeanor offense under California law. However, a DUID may attract felony charges under the following circumstances:
- If you commit a fourth or a subsequent offense
- You have a previous felony conviction of DUI or DUID
- A third party suffered severe injuries or died as a result of your drugged driving
You may also face felony charges if it is your third or subsequent DUI causing injury. When you commit a subsequent DUID offense, you will face a longer license suspension than a first–time offense. You will also face other penalties like probation, fines, and DUI School. The minimum jail sentence and license suspension increase with every subsequent DUID crime you commit.
Punishment For Felony DUID
The penalties for felony DUID will vary depending on your criminal history and the specific charge. The penalties for felony DUID may include:
- A jail time of 16 months to four years
- A fine ranging between $1,000 and $5,000
- At least one-year revocation of your driver's license
The specific penalties for a DUID offense will vary depending on the following factors:
- Your criminal history, including prior wet reckless and DUI convictions
- The facts or circumstances of your case
- Whether any third parties suffered injuries
- Whether you would benefit from a drug treatment program
If you undergo a DUID conviction, you will not be eligible for a drug diversion program. Your attorney may be able to convince the prosecutor to drop the DUID charges and charge you with a lesser offense. This way, you may be eligible for the drug diversion program.
Fighting DUID Charges
You can use several defenses to fight DUID charges. Some DUI defenses may apply as DUID defenses. For example:
- You can state that the law enforcement officers did not have probable cause to initiate a traffic stop or make a DUID arrest.
- You can also state that when the police were interrogating you, they did not read your Miranda rights.
- You can also state that the law enforcement officers did not follow proper procedures while collecting and storing blood samples.
- You can state that other physical and mental conditions mimicked signs of drug impairment.
- Chemical tests aren't always accurate, and you can use this fact to fight DUID charges.
Find A DUID Attorney Near Me
If you face charges for DUID in Bakersfield, CA, we invite you to contact us at Koenig Law Office. Contact us to discuss your case with an experienced attorney who will help you create a convincing defense. Call us at 661-793-7222 and speak to one of our attorneys.