California’s DUI w/ Drugs: Vehicle Code Section 23152(f)

Driving while you are under the influence of a drug(s) and/or alcohol is a serious Vehicle Code violation. A conviction could result in being stripped of future driving privileges. Having a conviction for driving under the influence of drugs will have a negative impact on jobs, housing, and higher education opportunities.

Maintaining control of your future can be difficult to do when facing such offenses. The help of a criminal defense lawyer who knows how to navigate California’s DUID laws will increase your chances for a more desirable outcome.

To gain a better understanding of what this law entails, let’s take a look at how California defines driving under the influence of drugs.

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Defining California’s Driving Under The Influence Of Drugs

California’s moving laws include vehicle codes that cover automobile and traffic violations. DUID is one such statute the state outlines under Vehicle Code 23152(f). This law is violated when:

  • You drive/operate a motor vehicle, but are not sober,
    • Because you were under the influence of drugs (other than alcohol), OR
    • You are addicted to drugs. However, if you receive help for this addiction under an approved treatment program, this section would not apply to you.
      • Drugs, under this law, is defined as a substance capable of affecting someone’s brain, muscles, or nervous system.
      • The drugs can be any type, such as illicit or legal drugs, including OTC (over-the-counter) and prescription ones.
      • Illegal drugs would include cocaine, GHB, heroin, methamphetamine, or hallucinogens.
      • Although marijuana is legal, it’s illegal to drive while under the influence of it.
      • Examples of OTC drugs would include non-prescription meds, such as cold medicine, anti-inflammatories, antihistamines, sleep-aids, other pain-relievers.
      • Prescription medications include Vicodin, Ambien, Oxycontin, and other meds that warn the user about operating heavy machinery while taking it, even if it does not produce the same “high” effects as other controlled substances.

In other words, you were not sober enough to have full control of your faculties, thus impairing your ability to drive with caution and reasonable care.

That said, there is a separate, but often associated law that involves both drugs and alcohol. VC 23152(g) is when someone chooses to drive while under the combined influence of drugs and alcohol. It is defined in much the same way as VC 23152(f), DUID, except the substances used are coupled with alcohol consumption.

Similar Offenses

It’s not unheard of for associated crimes to be charged in addition to VC 23152(f), DUID. The following is a list of similar statutes to driving under the influence of drugs and they can be just as difficult to defend oneself against. 

California Vehicle Code 23152(b), DUI with a BAC of 0.08% or higher;

If you drive while intoxicated and your blood alcohol concentration (BAC) is at or greater than 0.08%, you face harsh criminal consequences.

California Vehicle Code 23152(g), driving under the combined influence of drugs and alcohol;

Operating/driving a motor vehicle while under the influence of alcohol combined with drugs is illegal.

The Prosecution

There are several main factors the prosecution must present to charge you with DUI w/ drugs. These main elements are usually determined by the initial traffic stop and pursuant DUI investigation. When someone is pulled over for a routine traffic stop and the police officer suspects the driver might be impaired, they will investigate further.

Initial Investigation Procedures

The officer will ask the driver whether they have been consuming alcohol or taking drugs. They may also look for any physical symptoms associated with alcohol or drug consumption. From there, they could ask the driver to submit a preliminary alcohol screening test (PAS), using a handheld breathalyzer. Also, the driver may be asked to perform several field sobriety tests (FSTs).

If, for some reason, the tests are negative for alcohol or the driver is within the BAC legal limit, the officer may begin to suspect drug use. This would be the case if the driver still appears to be under the influence, making them unable to operate the motor vehicle in a safe manner. The police officer will look in the vehicle for any drugs or paraphernalia associated with drug use. They may also request the driver take a mouth swab test to look for other drugs in their system.

When drug use is suspected, the police officer will most likely call in a drug recognition expert (DRE). These experts are officers who have been specially trained in detecting whether someone is under the influence of any drugs. Some counties do not have DREs, which means a driver who is under suspicion for DUID may not be evaluated by a drug recognition expert. However, the lack of a DRE does not exclude the driver from legal ramifications for being under the influence.

The Drug Evaluation

Once a DRE is on the scene, they take the lead on the DUID investigation. At this point, the whole process is moved from the roadside to a more applicable area, typically the police station. These experts follow twelve steps to evaluate the driver suspected of being impaired. This evaluation process requires the drug recognition expert to:

  1. Double-check the driver’s BAC to confirm their impairment is not due to alcohol consumption.
  2. Interview the arresting officer for their initial suspicions.
  3. Check the driver for any physical symptoms of impairment.
    1. This means re-checking pupil size,
    2. Checking the pulse rate,
    3. Looking for trace amounts of residual drugs/narcotics in or around the mouth and/or nostrils,
    4. Looking for possible track marks, in cases where the drugs were injected using a needle, and
    5. Possible changes in muscle tone, i.e. rigid or flaccid muscles due to certain drug use.
  4. Performing a “horizontal gaze nystagmus” (HGN) exam, which is when the eye involuntarily jerks around and is sometimes indicative of drug use.
  5. Require the driver to re-take the recommended FSTs. These field sobriety tests include the finger to nose test, single-leg stand test, Romberg balance test, and the walk and turn test.
  6. They will then ask the driver about any drug use while closely observing the driver’s reactions and behavior during questioning.
  7. They will ask the driver to take a DUI blood test and/or a urine test.

Chemical Concentration Levels & The Prosecution

The law does not outline whether there is a legal limit of having drugs in ones’ system. In fact, there are certain drugs that can last in someone’s bloodstream and/or urine for twenty-four hours, while others can remain for up to three days. Marijuana, for instance, can remain in the bloodstream for several weeks. Any intake of drugs and how quickly they clear someone’s system is based on a number of factors, including the person’s weight, metabolism, tolerance, ingestion method, and length of use.

The chemical tests (blood and urine) indicate the presence of drugs and can detect the concentration levels in the blood. However, experts have no definitive answer to exactly what the amount is that would impair someone’s judgment. There is no BAC calculator for the legal limit of drugs. Everyone reacts differently depending on what it was, how much they took, and an individual’s tolerance level.

In other words, regardless of whether the chemical tests come back positive or negative, it would not be considered entirely conclusive evidence. At this point, the prosecution essentially relies on the police officers’ initial observations, the DRE’s investigation, and the testimony of the expert witness.

Who Can Be Charged

It’s important to note, if the officer believes there to be probable cause for driving under the influence of drugs, they can arrest you. For a deeper understanding of who can be charged with DUID, take a look at the example below.

Example 1:

Tom was swerving his truck on the road, nearly hitting several parked cars while attempting to stay within his lane. Officer Dan pulls him over and notices Tom’s bloodshot eyes and shaking hands. Believing Tom was intoxicated in some way the officer asks him if he was stoned when he got into the truck. Tom laughed and said no. The officer asked that he take a breathalyzer. When the breathalyzer came back negative for signs of alcohol in Tom’s system, Dan suspected drug use.

Upon further visual investigation inside the cab of the truck, Officer Dan noticed rolled up money laying on the middle console. He suspected it was cocaine and requested a DRE, who has Tom perform FSTs. The expert determines Tom is under the influence of drugs and take him into custody. A DUI blood toxicology screening revealed cocaine, marijuana, and Vicodin in his system.

Tom might have had a prescription for Vicodin and marijuana is legal in California, however, cocaine is not. The combination of these drugs impaired Tom’s ability to operate a motor vehicle safely. He would face charges for driving under the influence of drugs under VC 23152(f).

Legal Defenses

An experienced DUI defense lawyer will be able to determine what the best route would be for defending yourself against a DUID charge. Their expertise can help fight these allegations as they would be familiar with the most common legal defenses.

Know Your Rights

With that said, it’s also important for you to know your rights. What a driver facing a possible DUI/DUID offense may not know is, they do not have to answer any of the drug recognition experts’ questions and can refuse to take any of the field sobriety tests. A driver is allowed to invoke their Fifth Amendment right against self-incrimination. Essentially, if they are not placed under arrest, they are within their rights to refuse any chemical tests (breathalyzer or blood/urine tests).

Now, just because there are no consequences for refusing the chemical tests, does not mean this is the case in every situation. If you are on probation for any previous DUI’s/DUID’s OR you are under the legal age of 21, you cannot legally refuse FSTs. At least, not without stringent consequences. If you happen to be on DUI probation or are under the legal age and refuse the chemical tests, your driver’s license would most likely get suspended. Also, if you are convicted of DUID and refused the chemical tests, you may have to face a mandatory county jail sentence for forty-eight hours or more.

Regardless of whether you choose to submit to the chemical tests or not, taking blood from a driver without their consent is illegal. The police officer cannot simply force the blood withdrawal, not without a warrant.

Legal Defense Examples

The examples below detail some of the general defenses that have been used to fight against driving under the influence of drugs charges.

Did the arresting officer have probable cause?

There has to be probable cause for a drivers’ blood and/or urine to be tested as well as their vehicle to be searched. It draws reasonable doubt for the case if the officer had no probable cause for even initiating a traffic stop, let alone conducting a DUI investigation.

Was the defendant technically impaired?

Since there is no definitive answer to what amounts of drugs in a person’s system could cause impairment, a DUID charge can be challenged. For instance, long-time drug users build up a stronger tolerance for their drug of choice. Even if there is a high concentration of narcotics in their system, it does exactly translate into them being impaired. Some people can function normally, including operating a motor vehicle without issue.

Did the impairment symptoms actually have innocent explanations?

When initial observations are made and an officer sees a flushed face, red/watery eyes, unsteady movements, or slurred speech it can give them the impression of someone being under the influence of drugs. However, there are a number of explanations that can cause these supposed impairment symptoms.

Being pulled over by the police is enough to increase most people’s anxiety or nervousness. Having a common cold/flu, allergies, or other illnesses/conditions could also explain impairment suspicions. Even an injury, fatigue, or sleep deprivation could produce similar signs to DUI impairment.

Example:

Stephanie gets pulled over for failing to stop at a stop sign. When she pulls out her license, insurance, and registration, her hands shake. The officer also noticed her flushed face, the chemical-like fruity smell of her breath, and the faint odor of marijuana from her clothes. He begins a DUI investigation. When the PAS breath test comes back negative for alcohol consumption, he still suspects marijuana. Either she ingested or vaped it to create that smell from her breath. He calls in a DRE. When questioned, Stephanie comes off as confused and anxious. They run FSTs and determine she is under the influence of marijuana.

However, it’s discovered that Stephanie is a diabetic and her glucose levels were outside her normal parameters. Symptoms of low blood sugar include trouble staying focused, shaking, sweating, increased worry, and sometimes a peculiar, yet sweet odor in one’s breath. She exhibited shaky hands, a flushed face, confusion, and anxiety, all of which are signs of low blood sugar in diabetics.

Stephanie used cannabis and CBD mixed strains on a regular basis but had not used any for a couple of days. It can be detected in the bloodstream for up to a week or longer, depending on consistent use, thus it’s no surprise her blood test came back positive. She did, however, hang out with some friends who often smoked cannabis around her.

In this example, her behavior as observed by the officer and DRE have innocent explanations. According to her medical history, all her “signs of impairment” were actually symptoms of low blood sugar. The faint odor of cannabis on her clothing was due to her friends smoking it around her.

Penalties for DUID Vehicle Code 23152(f)

If convicted for the first DUID, you face misdemeanor punishments;

3 to 5 years of informal (summary) DUI probation,

Fines at or greater than three hundred ninety dollars,

Enrollment and attendance for a minimum of three months in a California DUI school for drug education, and

A suspended driver’s license for up to six months.

A second or subsequent DUID offenses would result in increased fines, probation, DUI school, and a longer suspension on your driver’s license.

Enhanced Penalties

You will face felony penalties for a fourth DUID, a prior felony conviction for DUI, or if a third party was severely injured or killed as a result of your driving under the influence of drugs. This would also be the case if this was the third or subsequent time the DUID caused an injury.

If convicted of felony DUID, you face;

16 months to 4 years in county jail or state prison,

Fines between one thousand and five thousand dollars, and

Your driver’s license will be revoked or suspended for a minimum of one year.

Depending on the circumstances of your case, there is a possibility for felony (formal) probation to be served instead of the full jail or prison sentence. This can be determined with the expert help of a DUI defense lawyer.

Penalties for Similar Offenses

California Vehicle Code 23152(b), DUI with a BAC of 0.08% or higher;

Misdemeanor;

Summary (informal) California DUI probation for 3 to 5 years,

Up to one year in county jail,

Fines at or above three hundred ninety dollars,

3 to 30 months of DUI school,

Suspended driver’s license for 6 months to 3 years, and

Ignition interlock device installed in one’s vehicle.

Felony;

Formal (felony) probation,

Up to three years in state prison,

Driver’s license revoked for 1 to 3 years, and

Being labeled by the California DMV as an HTO, habitual traffic offender.

California Vehicle Code 23152(g), driving under the combined influence of drugs and alcohol;

Misdemeanor;

County jail sentence of up to six months,

Informal (summary) California DUI probation for up to five years,

Fines at or greater than three hundred ninety dollars,

Enrollment and attendance to an approved DUI school program, and

Suspended driver’s license.

We Can Help

Are you or someone you know facing a DUID or related offense? If you are located in the greater San Diego area, Orange County, or Los Angeles, don’t hesitate to contact the Law Offices of Anna R. Yum. As a former prosecutor turned award-winning criminal defense lawyer, you can expect a passionate and effective fight for your rights.

For more information or a free, no-obligation consultation, call us at 619-233-4433 or go through our online contact form.

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