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.

The Legal Meaning of DUID

California has two statutes that criminalize driving while intoxicated with narcotics. They are:

  • Vehicle Code section 23152(f); and
  • Vehicle Code section 23152(g) (operating a vehicle while intoxicated with both narcotics and alcohol).

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:

  • Legal drugs like marijuana;
  • Illegal drugs, for instance, heroin, cocaine, and meth;
  • Over-the-counter medicines like cold syrup and antihistamines; and
  • Prescription drugs (whether they make the person using them high or not).

California DUID charges are mostly founded on the driver being intoxicated with Ambien, meth, prescription opiates like Oxycontin or Vicodin, and pot.

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.

The Legal Drug Limit in DUID Cases

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:

  • Intoxicated with drugs;
  • Intoxicated with both alcohol and drugs; or
  • Addicted to drugs (unless undergoing treatment for the addiction under a court-approved program).

How DUID Investigations Happen

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:

  • Ask you questions about your drinking or narcotics use;
  • Require you to undergo a preliminary alcohol screening (“PAS”) test;
  • Ask you to do one or several FSTs (field sobriety tests);
  • Check out for physical intoxication symptoms like constricted or dilated pupils; and/or
  • Check to see whether there are drug paraphernalia or drugs visible in your car.

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/

The DUID Arrest

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:

  • The arrestee is detained and is not allowed to leave;
  • The officers need to ask questions meant to draw out incriminating responses.

How Blood Tests are Used in DUID Cases

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:

  • Narcotics were detected in your system;
  • The quantity of the drugs that were detected;
  • In particular cases, the number of times when you might have consumed/ingested the controlled substance.

However, because not any of the above is deemed conclusive concerning impairment, the prosecuting attorney will often rely highly upon:

  • The arresting officer’s observations;
  • The DRE’s observations, if any;
  • The expert witness testimony.

What a DUID Court Trial is Like

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:

  • The defendant’s unsafe driving pattern;
  • The defendant’s intoxication symptoms;
  • The accused’s performance on FSTs and PAS test.

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:

  • Confirming the defendant’s impairment level was not solely due to alcohol impairment;
  • Confirming the accused was intoxicated with illegal substances and did not suffer from any health condition;
  • Deducing the defendant was intoxicated with one/multiple specific classifications of drugs.

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 depressant, like Valium;
  • Marijuana;
  • A stimulant, like cocaine;
  • A hallucinogen, for instance, ecstasy;
  • Narcotic analgesics like morphine;
  • GHB;
  • PCP, among other drugs.

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:

  • Toxicology screening that shows the drug presence; and
  • Quantitative analysis to show the amount/amounts of any narcotics detected by toxicology screening.

An expert witness will then attest to the drug amount in the accused's system. 

Legal Defenses to DUID Charges

Several general DUI legal defenses apply to all DUI offenses, including DUID. These defenses include:

  • Law enforcement lacked probable cause to pull you over or start a DUI/DUID investigation;
  • Law enforcement did not correctly follow California Code of Regulations Title 17 procedures for gathering, analyzing, and storing blood, urine, or breath samples;
  • The police did not properly advise you of your Miranda warning before interrogating you.

See https://govt.westlaw.com/calregs/Document/IBCAFACDECDA24BA29AC43AF44E41C70A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

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

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.

The “Blood Split” Defense

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.

The Results of the Chemical Test are Not Always Accurate

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:

  • Contaminated medical instrument;
  • Improperly obtained blood;
  • Improper sample handling; and/or
  • Improper sample storage.

Innocent Explanations May Resemble Drug Impairment

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 Different Causes

Even the recognized drug impairment signs can have a different explanation than narcotics use. For instance:

  • Pupil size is a common sign of narcotics use, but the size of the pupil may also be impacted by light, darkness, excitement, and nerves;
  • Poor balance could be the result of uncomfortable footwear (like high heels or steel boots), an old injury, or an inner ear disorder;
  • Horizontal gaze nystagmus is a drug impairment symptom, but it could also naturally occur in some people.

See https://www.findlaw.com/dui/arrests/what-is-horizontal-gaze-nystagmus-hgn.html

Penalties for DUID Conviction

DUID is typically charged as a misdemeanor offense. It will generally be considered a felony when:

  • The accused has a past conviction for one or more felony DUIs;
  • It is the accused's fourth/subsequent DUI crime;
  • It is their third/subsequent DUI with injury, or someone else was severely hurt or died due to the accused DUI.

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:

  • Summary (informal) probation for a maximum of five years;
  • At least $390 in fines (with assessments and penalties, the amount is usually about $1,800);
  • License revocation/suspension for a minimum of six months; and
  • A drug education course for not less than three months.

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.

Felony DUID Consequences

Based on your criminal history and specific charge, the consequences for felony DUID can include:

  • A prison sentence of sixteen months to four years;
  • Up to $5,000 in fines;
  • Driver's license suspension/revocation for a minimum of one year.

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:

  • The case facts;
  • The accused's criminal history, including past DUIs and “wet reckless” (reduced DUI) convictions;
  • Whether someone else was injured;
  • Whether the accused would be amenable to a drug treatment program.

Drug Diversion in DUID Cases

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:

  • 36 diversion program (for non-violent drug offenders);
  • Drug court;
  • Penal Code section 1000 (for simple drug possession).

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.htm
Drug Diversion
(California Penal Code section 1000: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=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.

Driving While Addicted to Drugs

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.

The Los Angeles Defense Attorney Law Firm

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