Most DUIs are charged under California Vehicle Code (VC) §23152(a), which makes it unlawful to drive under the influence of (DUI) drugs and/or alcohol or (b) with a BAC over .08%. Specifically, driving under the influence of drugs (DUID) may be charged as a violation of VC §21351(e)(drugs only) or (f)(drugs and alcohol). Like any typical DUI charge, a DUI with drugs and alcohol is a serious charge which can have life-changing consequences, both through the DMV and the court system.
Here are some important things you need to know:
1. A DUI with Drugs and Alcohol is Treated Differently Than Typical DUI
In a typical DUI (one with only alcohol involved), the DMV mandates a standard punishment. A “per se” DUI is a BAC of .08% or higher. However, there is no such thing as a “per se” DUI with drugs and alcohol. Because there is no “per se” DUI with drugs and alcohol level for being under the influence, the DMV cannot administratively suspend your driver’s license unless you refuse a chemical test. Upon notification from the superior court that you have gotten a DUI conviction, the DMV triggers a 1-year driver’s license suspension. Unlike a DUI conviction, for a DUI conviction, the DMV will not issue a restricted driver’s license.
Another collateral consequence of a DUI with drugs and alcohol is the impact to your job or career, especially if you’re in a profession that requires you to self-report any kind of conviction.
There is a stigma attached to a drug DUI because of the “drug” component. Generally, prosecutors are not fans of a DUI with drugs and alcohol because (1) it is more burdensome for them to prove, but (2) it can be more dangerous to have a DUI because of the interactions with alcohol.
Penalties for a typical DUI conviction include (1) probation, (2) fines normally between $390-$1000 (3) DUI school, (4) drivers license suspension and/or (5) jail.
For a first offense, penalties may include jail (96 hours to 6 months), fine $390-$1000, drivers license suspension for 6 months and DUI school. A DUI with drugs and alcohol charge is considered a priorable offense in California, so if you have any subsequent DUIs, any DUI with drugs and alcohol conviction will make the next ones a second, third, fourth, etc.
For a second offense within 10 years, the penalty is 90 days to 1 year in jail, fines (same as 1st), driver’s license suspension for 2 years, and a second DUI school.
For a third offense (within 10 years), you may be imprisoned for 180 days to 1 year, fines (same), license suspension for 3 years, ignition interlock device is required in any car you drive after that time and you have to complete another (longer) DUI school.
For a Fourth or subsequent offenses within 10 years, you may be imprisoned for 180 days to a year, same times license suspension for 4 years, ignition interlock device is required, and another program is mandated.
These are pretty typical penalties, and some counties are less harsh on DUIs than others. For example, on a third DUI, a standard offer from the DA’s office may be 120 days, but they will be unwilling to budge on any of the terms.
Thing that can make the penalties worse include if you hurt someone in an accident while you are DUI/DUI with drugs and alcohol, or a hit and run.
2. A DUI with Drugs and Alcohol Presents a Number of Different Evidence Issues
Obviously, a breathalyzer won’t detect drugs in system, so in a suspected DUI with drugs and alcohol case, a blood test is usually given. In a regular DUI case, under the implied consent rule (something that you’ve agreed to if you have a CA driver’s license) the suspect has the option of either a blood or a breath test. In a DUI with drugs and alcohol case, normally there is a breath test first, but then the implied consent rule provides that the suspect can either take a blood or a urine test.
DRE
Everyone has a different metabolism, which means that “under the influence” of drugs is not quantifiable as easily as alcohol. As a consequence, the prosecutors must rely heavily on drug recognition experts (DREs) during trial in order to get a conviction for a DUI with drugs and alcohol. A DRE has a fancy name, but really it is just a law enforcement officer who has completed a national program in narcotic recognition, and most law enforcement agencies in California have at least a few officers who are certified DREs.
DUI Investigation
Commonly, a DUI with drugs and alcohol investigation begins with a normal DUI investigation, where the officer suspects that you are under the influence of drugs or alcohol. However, when you’ve been administered the breathalyzer, the instrument will come back with a reading of .000% BAC, or something very low (probably under .003% BAC). Some police departments routinely conduct DUI investigations if the suspect’s breathalyzer is below a .005%. At that point, the officer will initiate a DUI investigation, normally radioing for a DRE expert to come on scene to assist.
The DRE will start his or her investigation by confirming the suspect is not under the influence of alcohol, then they use the facts provided by the officer already on scene. Then he or she will perform the standard 12-step DUI with drugs and alcohol evaluation. The 12 steps of a DUI investigation as provided in the DRE report are as follows:
- Confirm Breath Alcohol Test
- Interview with Arresting Officer
- Preliminary Examination/First Pulse
- Eye Examination
- Divided Attention Psychophysical tests (Rhomberg one-leg stand, walk and turn, finger to nose)
- Vital Signs + Second Pulse
- Dark Room Examination of Pupil Size
- Examination of Muscle Tone (Rigidity/Flaccidity of muscles indicate presence of different drugs)
- Check For Injection Sites/Third Pulse
- Subjects Statements/Observations
- Analysis/Opinion of DRE
- Toxicological Exam (Blood Draw)
3. DUI with Drugs and Alcohol Trial Issues Differ from a Standard DUI
The DUI with drugs and alcohol trial instructions provide the hypothetical jury to consider: “Affecting the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that any ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.”
One of the things that makes a DUI with drugs and alcohol trial different than a standard DUI trial is the evidentiary proof. Both a DUI with drugs and alcohol and a DUI use the same definition for “under the influence”, which relates to the condition of the driver, and means that the DA must show that you are unable to operate a vehicle in the manner than an ordinary person would, exercising reasonable care. You can be arrested for being under the influence of a drug (pursuant to Penal Code §11550), but driving under the influence of a drug has much more substantial consequences. Another commonality between DUIs and DUIs with drugs and alcohol are that the manner of operation of the vehicle (how you drove the car) is not the only factor that will be considered in a DUI/DUI with drugs and alcohol case. Not surprisingly, other things that the DA can use to show you were “under the influence” of drugs include if you were staggering, if you smell like alcohol/marijuana, and if you took a breathalyzer test (even if you blew a .000%, which trust me the cops would tell you if you did). However, if you have blood-shot eyes or you’re sweaty, obviously, those factors alone are not always indicative of being under the influence. Other factors can mislead officer into thinking that you’re under the influence when you’re not. Basically any type of injury, illness, fatigue, or even nervousness can make a cop suspicious that you’re driving under the influence.
Authorized Use of Drugs (including Marijuana) is No Defense
Unfortunately, contrary to popular belief, authorized use of drugs is not a defense to a DUI with drugs and alcohol, which means that you can get a DUI from taking virtually any kind of drug including prescription drugs (commonly Ambien, Xanax, and Vicodin), and even over the counter medications(Benadryl or Nyquill). Authorized use of drugs includes prescribed medical marijuana. Even if your marijuana use was legal, just like legally drinking alcohol, if you’re drinking alcohol legally, but then you drive at over a .08% then it is illegal.
The research and scientific methods behind a DUI with drugs and alcohol investigation are not very well established, nor are they 100% accurate. If a DRE doesn’t examine the subject to determine the symptoms, the prosecution will be unable to prove that the symptoms show a specific drug. Also if a blood test is taken, sometimes it only determines the presence of the classification of the drug, not the drug itself and no sample is preserved for a retest. On the other hand, if a drug test was taken the blood test may be able to be used defensively to show that because the presence of the drug was minimal and the suspect wasn’t under the influence.
If you would like to delve deeper into your own case with an experienced attorney, we invite you to contact our office for a consultation.
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