How Is a DUID Defined Under California Law?
California Vehicle Code Section 23152e criminalizes the operating of a motor vehicle while under the influence of any drug whatsoever. VC 23152f, similarly, addresses driving while under the combined influence of drugs and alcohol.
The definition of being "under the influence" is basically the same as for DUI as defined in VC 23152a. That is, if the drug and/or alcohol is impairing your ability to drive safely, the way a sober person would be expected to drive, you are under its influence.
The drugs involved in a DUID ("drugged driving") need not be illegal narcotics, though that is often the case. But the drug in question could also be a prescription drug or even an over the counter medication. It could even be nitrous oxide ("laughing gas") administered by your dentist, which is why you need to arrange for someone to drive you home after certain dental surgeries.
It is important to realize that lacking a proper prescription for a drug is a separate offense from driving under its influence. Even with a legal prescription, you cannot legally drive while intoxicated by any drug.
What Must the Prosecutor Prove?
To gain a conviction for a VC 23152 e or f charge, the prosecution must demonstrate the following elements of the crime beyond all reasonable doubt:
- You were operating a motor vehicle.
- You were under the influence of a drug at the time.
- You willingly and knowingly put yourself under the influence of that drug. (It was not due to someone else drugging you without your consent or due to faulty warning labels on medication packaging.)
Sometimes, if you were only observed sitting in a parked car or were arrested at home based on a "hot tip" call to police when someone saw you driving earlier, there could be difficulty in proving you had been driving while under the influence of drugs, even if you were found to be "high" later.
And there are rare cases where someone else may have "slipped you a mickey" or otherwise drugged you against your will.
But typically, it is a matter of proving you were in fact under the influence of a drug. That drug may be any substance that affects your brain, nervous system, or muscular system. Anything that you ingest or take intravenously that affects you mentally or physically or both can be considered a drug.
And if it can be shown that the drug in your system, to any degree, negatively affected your driving abilities, you can be convicted of DUID.
But unlike DUIs, DUID does not involve a .08% or other BAC standard. There is no "limit." Any drugs at all found in your system could, theoretically, lead to a DUID conviction. But testimony of the arresting officer and other witnesses or other means must also show that you were "under the influence."
The DUID Traffic Stop
When an officer suspects a driver of driving while intoxicated, but upon pulling him/her over, does not see any signs of being under the influence of alcohol, the officer will conduct a DUID investigation.
Often, if you test negative for alcohol on the PAS (breathalyzer) test, but the officer still suspects you of DUI, he/she will suspect you of DUI Drugs.
At that point, a DRE (drug recognition expert) will be called in. The DRE idea originated in Los Angeles, but today, it is used nationwide. DREs are experts who will take you through a 12-step drug evaluation and will determine which (if any) drug you are under the influence of.
The exam includes testing to ensure it isn't alcohol causing the alleged intoxication, an interview with the police officer, checking your eyes, pulse, balance, muscle tone, possible injection sites on your body, and more.
A blood test or urine test will be asked for. And given California's implied consent rule and the extra possible penalties for refusing a chemical test, "asked for" is a somewhat fuzzy term in this context.
The observations of the arresting officer, your personal appearance at the time, your manner of driving, your failure on an FSTs, the chemical test result (if positive), and the opinion of the DRE will all be key evidence for the prosecution at the trial.
The DRE will testify as to his or her training for drug testing, as to the level of impairment observed, as to the blood test results, and as to the type of drug(s) he/she believes you were under the influence of.
Usually, there is no measurement of the amount of the drug found in your system, just the fact it was there. That, combined with evidence of alleged driver impairment, is the prosecution's whole case.
And while you might think the blood test is invincible evidence, in fact, a second "blood split" can sometimes show there was very little chance of impairment. And there are many other viable defenses as well, depending on the details of each case.
Possible Penalties for a DUID Conviction in California
The same penalties that apply to a DUI Alcohol also apply, in California, to a DUI Drugs. Usually, DUID is a misdemeanor offense, but it can be a felony when aggravating factors exist or when it is a 4th or subsequent offense.
A first-offense misdemeanor DUID is punishable by:
- Up to 6 months in jail. But usually this is not actually sentenced. Community service might be put in place of jail time.
- From 3 to 5 years of misdemeanor level probation.
- Fines and fees totaling around $1,800.
- A license suspension of 6 months or more. But we can often get you approved for a restricted license so you can drive to/from work.
- Three months or more at a state-approved DUI(D) class, at your own expense.
For a 2nd, 3rd, or 4th/subsequent offense, there will generally be mandatory jail time, higher fines, longer DUI classes, and other gradually increasing penalties. And also note that a wet reckless conviction, along with any DUI/DUID convictions, within the previous 10 years will count as a prior for sentencing purposes.
If you refused to submit to the chemical test, there is mandatory time in county jail (48 hours) even for a first-time DUID. And the minimum suspension period doubles from 6 months to 12 months.
Related Drug Charges
It is also important to realize that unlike DUI Alcohol cases (except if the driver was under 21), you can face additional drug abuse charges along with the DUID.
If you are shown to have possessed and/or used an illegal narcotic or used a drug without a valid prescription, that is a separate crime.
Conviction of violating Health & Safety Code Section 11550, which prohibits being under the influence of a controlled substance, can get you up to 12 months in county jail. It is possible, however, with the help of your defense attorney and for a first-time offense, to get into a drug diversion program (such as Prop 36, drug court, or PC 1000 programs) in order to avoid or minimize jail time.
Finally, note that it is possible for you to be charged with VC 23152c (addicted to drugs while driving) even if the drugged driving charge can't be proved. And this charge has the same penalties as a DUID. The prosecutor will have to show you were actually addicted and not merely a frequent user of the drug, but he/she can skip around proving you were under the influence while driving by switching over to a VC 23152c charge.
Some Commonly Used Defense Strategies Against a DUID Charge
At Long Beach Criminal Defense Attorneys, we have a veritable arsenal full of tried and proven defense strategies against DUID charges. We know what works, when, and how to present your case in the best possible light at the DMV and/or trial.
We never use a "cookie cutter," "one size fits all" approach. We fit every defense to the exact nature of the case at hand. But undeniably, there are certain basic types of defenses that come up and again and again.
Here are some of the defenses we most commonly use to get DUID charges dismissed, acquitted, or to win a reduced charge or sentence:
- Lack of Probable Cause and Other Police Violations
If your rights were violated in collecting evidence against you, that evidence can be barred from court, which will often lead to your case becoming "unwinnable" to the prosecution and therefore being dropped.
If police stopped you without probable cause, or arrested you without probable cause, that is a violation of your rights. If they did not read you your Miranda Rights or if they interrogated you before informing you you were under arrest, we can likely get your case dismissed.
And Police in California must also follow all Title 17 regulations. These regulations specify how blood and other chemical test samples must be taken, tested, and stored. Any violation of Title 17 can lead to a dismissal.
- Drugs in Your System Does Not Necessarily Equal Intoxication
In many cases, we can argue that even if a drug was present in your system, it may have been there in mere small traces not capable of causing intoxication or putting you "under the influence." Some drugs, like marijuana, can linger in your system long after you take them and may not affect your driving at that point.
Additionally, the quantity of a drug in one's system will not correlate equally to its influence, from person to person. Body size and type and metabolism and built-up "tolerance" to a drug can all affect how much it affects you.
- False "Signs" of Drug Impairment
Although the arresting officer, DRE, and any other witnesses will use the police report, DRE exam, field sobriety tests, and their observations of your driving pattern and physical appearance against you in court, these evidences are not necessarily that strong.
There are many "innocent explanations" for all of these things. For example, extreme tiredness, nervousness, allergies and illnesses, use of certain medications, dim lighting, natural nystagmus (eye-jerking action), bad balance due to an earlier injury, weather, and other factors can all affect test outcomes.
- Faulty Chemical Test Results
There are many reasons why a blood or other chemical test can err. The testing equipment may have been wrongly calibrated, improperly used, or contaminated. The samples may not have been analyzed and stored in accordance with Title 17, leading to false positives.
Contact Us Today For Help
At Long Beach Criminal Defense Attorneys, we have the legal knowledge, deep-seated experience, and grit and determination to fight your DUID charge at the DMV hearing and/or trial. We have won numerous cases just like yours in the past, and we stand ready to do the same for you.
For a free legal consultation, contact us anytime 24/7/365 at (562) 308-7807. Or if you prefer, come to our office located in Long Beach for an in-person consultation.