Even though personal possession of drugs is now a simple infraction in California, if a law enforcement officer suspects that you used drugs and then drove a car, you may be prosecuted for driving under the influence of drugs (DUID) just as if you were driving while intoxicated by alcohol.
California Vehicle Code §23152 addresses the use of drugs and driving, and makes it illegal to drive when:
- You’re under the influence of any drug
- You’re under the combined influence of drugs and alcohol
- You’re addicted to the use of any drug and not participating in an approved treatment program
Under California law, being “under the influence” simply means that the substance impaired your ability to drive so that you no longer exercised the same caution you would if you were sober. There is no legal limit for the amount of drugs you can have in your system — any amount that shows up in a blood test can result in a DUID charge.
Additionally, it doesn’t matter whether the drug was legally prescribed. If the drug impaired your ability to drive, you can be charged with driving under the influence of drugs regardless of whether the substance in question was a street drug such as cocaine, heroin, meth, or marijuana, or a prescription drug such as Valium, Vicodin or Oxycontin.
Driving under the influence of drugs will leave you with a permanent criminal record, potential jail time, expensive fines, and other long-term consequences if convicted. An experienced San Diego drug crimes lawyer can help you avoid the worst penalties you face.
Blood Testing and Implied Consent
When you are suspected of drugged driving, the officer typically will ask you to give a blood sample that can be tested to determine whether you have drugs in your body. When you get a driver’s license in California, under a doctrine known as “implied consent” you agree to submit to breath or blood testing when you’re arrested for driving under the influence. You may refuse to give a sample, but there are consequences for refusal, such as:
- Suspension of your driver’s license
- Enhanced penalty if you’re convicted of the DUID charge
If you were charged with driving under the influence of drugs because you got into an accident, or if you are unconscious, the officer may try to get a warrant for a forced blood draw, and you may be restrained so that qualified personnel at a hospital or a medical facility can take a blood sample from you.
Penalties for a California DUID Conviction
The system of penalties for driving under the influence in California can be complex. Under many circumstances, a DUID is a criminal misdemeanor on your first, second, or third conviction. A skilled San Diego DUI lawyer may be able to convince a prosecutor or court to agree to probation or community service for some or all of your sentence, but if you have multiple DUIs or DUIDs you may be required to serve at least some jail time. A driving under the influence of drugs conviction also will result in suspension of your driver’s license for six months to three years, depending on how many prior driving under the influence offenses you have on your record.
Once you have three DUIs or DUIDs in 10 years, your fourth or subsequent convictions will be felonies and result in your having a felony record and losing your driver’s license for four years.
- First Offense — Up to six months in jail, minimum $390 fine, six-month driver’s license suspension. You may receive probation in lieu of a jail sentence and have to complete a driving under the influence program.
- Second Offense Within 10 Years — A jail sentence of 90 days to one year, minimum $390 fine, two-year driver’s license suspension, completion of a driving under the influence program. You may receive probation for a second offense, but will have to spend at least a few days in jail under California Vehicle Code §23542.
- Third Offense Within 10 Years — A jail sentence of 120 days to one year, minimum $390 fine, three-year driver’s license suspension, designation as a habitual traffic offender for three years following your conviction, completion of at least 30 months of a driving under the influence program. You may receive probation but will have to serve some time in jail.
- Fourth or Subsequent Offense Within 10 Years — Upon your fourth conviction, you’re subject to felony penalties that include 16 months, two years, or three years in jail, or 180 days to one year in jail, and a minimum $390 fine under California Vehicle Code §23550. You also face a four-year driver’s license revocation and designation as a habitual traffic offender for three years following your conviction.
- Previous Felony DUI — If you have any prior felony DUI convictions within the preceding 10 years — even if it’s your only DUI — you can be sentenced to up to one year in jail, a minimum $390 fine, and are subject to having your driver’s license revoked for four years and being designated a habitual traffic offender for three years after your conviction.
If your license is suspended or revoked, you’ll have to pay fines and reinstatement fees, and meet several conditions to get your license back that could include getting an ignition interlock device installed on your vehicle, completing a DUI program, and proving that you have car insurance.
Other Consequences of DUID
Because driving under the influence of drugs is a criminal offense, it will result in your having a criminal record that will show up on background checks for employment or housing. Potential employers may be reluctant to hire you, especially if the job involves driving in any way. If you have a commercial driver’s license, you’ll lose your CDL at least temporarily if you’re convicted for DUID and that may affect your ability to earn a living.
You’re also likely to pay higher car insurance premiums when you have a drugged driving conviction on your record. Whether you’ll pay more, or how much more you’ll pay, is up to your insurance carrier and its internal formulas for calculating premiums and factors such as your age, gender, overall driving history, where you live, and whether you had a good driver discount applied to your policy before your DUID.
If your license is suspended, you’ll have to purchase an SR22 certificate showing that you have the minimum liability coverage required by California law before you can get your license reinstated following your suspension. That also may affect your insurance rates because you may have to buy high-risk insurance.
Defending a DUID Charge
To convict you of a DUID charge, a prosecutor must prove beyond a reasonable doubt that you:
- Operated a motor vehicle
- Under the influence of a drug or while addicted to use of a drug
- Such that your driving was impaired
In some respects, a drugged driving charge can be a little more subjective than an alcohol-related DUI charge. Cases depend on a law enforcement officer’s observations that suggest impairment, but sometimes signs of drug-related impairment can be caused by other factors such as being tired or having a medical condition.
Even if you take a blood test and the sample is positive for a controlled substance, that isn’t necessarily proof that you were impaired. Different people metabolize drugs differently, and while you may have been driving with a controlled substance in your system, the prosecutor still needs evidence to show that you were impaired, such as erratic driving.
Drug Recognition Experts — Often in a DUID case, the police department will use a specially trained drug recognition expert to build the case against you. The DRE will examine you for signs of drug use, including administration of standard field sobriety tests, checking your pulse, looking at your eyes to check your pupil size and whether your eyes jerk involuntarily, looking for injection marks, and asking you to give a blood or urine sample. An experienced San Diego DUI lawyer will have thorough knowledge about how drug recognition experts are trained, what procedures they must follow, and how to look for flaws in their process or conclusions.
Other potential defenses to a driving under the influence of drugs charge may include arguing:
- The officer had no probable cause for the traffic stop
- The officer had no reasonable suspicion to arrest you
- Your blood was drawn without your consent and without a warrant
- Proper procedures weren’t followed when drawing or analyzing your blood
- Your Miranda rights were not administered when you were arrested
Medical marijuana is not a defense. It’s important to note that being an authorized medical marijuana patient is not a defense to a driving under the influence of drugs charge that claims you were impaired by marijuana, along the same lines that having a valid prescription for a narcotic painkiller isn’t a defense to a drugged driving charge alleging that you were impaired by Vicodin. The key part of the drugged driving charge is the impairment, not whether the drug was lawfully in your possession. If you were impaired by use of marijuana or a prescription drug, then it will be irrelevant to a court whether you were legally allowed to possess or use the drug.