Late at night, Bill was weaving and driving his vehicle below the speed limit on a downtown street. He was stopped by the police and when contacted, the police noticed an odor of alcohol. Bill was given some field sobriety tests and did poorly on the balance and coordination tests. Bill was given a preliminary alcohol screening test and his alcohol levels were an .05, well below the legal limit. The police still believed that Bill was under the influence and they asked him if he had ingested any drugs. Bill suffered from anxiety disorder and had taken several Xanax pills that day. Still, the police arrested Bill for a violation of Vehicle Code Section 23152(f), driving under the combined influence of alcohol and drugs. After Bill hired me, I was able to demonstrate to the D.A. that Bill’s use of Xanax was prescribed and that Bill had not been aware of the effect that the drugs and alcohol would have when combined. As a result, I was able to obtain a much reduced charge for Bill, that of reckless driving.
The applicable law for drugged driving is California Vehicle Code Section 23152. In relevant part, CA Vehicle Code section 23152 states:
(c) It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in [an approved] narcotic treatment program.
(e) It is unlawful for a person who is under the influence of any drug to drive a vehicle.
(f) It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.
Penalties for the first offense generally require jail time of two days to six months, for fines up to $1,000 plus the taxes, license suspension for 30 days to 10 months, and completion of a DUI program. California Vehicle Code § 23536(a)-(d).
What Drugs are Prohibited:
Any controlled substance, meaning, any drug or chemical regulated by the government. A list of controlled substances regulated by federal law can be found at the Drug Enforcement Administration website.
Prescription and/or license for possession and usage:
It is still illegal to drive under the influence even if you have a prescription or license for the drug you are on. The fact at issue is whether you were too impaired to drive. The reasons for originally ingesting the drug are not relevant.
No blood testing standard has been established for DUIDs in California. Meaning, there is no fixed amount of drugs within the blood system that determines whether one is “under the influence.” Instead, impairment is determined on a case-by-case basis.
Differences Between Alcohol and Drug DUIs:
Like in any DUI case, the burden of proof is on the prosecution. However, a DUID case is harder for the prosecution to prove than driving under the influence of alcohol. The D.A. must prove that the ingestion of drugs so affected your abilities that you were not able to drive like a normally cautious driver. Since the prosecution will rarely do a quantitative test to determine what level of drugs are in your body, it is difficult for them to prove that you were actually under the influence. Evidence that the D.A. will make an effort to use against you is your driving, your performance on the field sobriety tests, and the test as to whether there is any level of drugs in your body. Sometimes, the police officer will be trained as a Drug Recognition Expert. This training includes classes on recognizing behaviors caused by different drugs, analysis of effects on the eyes, and knowledge of effects on speech and coordination. Such training will give more believability to the opinion of the officer.
Furthermore, unlike a charge of driving under the influence of alcohol, the D.M.V. will not automatically suspend your license for drugged driving. Instead, your license will only be suspended if you are convicted of driving under the influence of drugs.
What to do when pulled over:
Stay calm, submit to any test requested, give as little information as possible without being defiant, and call an attorney when it is over. There is no point in refusing to be tested because the refusal will be used against you in court. Also, if you are arrested, you must submit to a breath or blood test when offered one by the police or risk a loss of your license.
What Should You Do if charged: