Los Angeles DUI Attorneys California Vehicle Code Section 23152(e) VC Driving While Under the Influence of Drugs (DUID)
Overview of California DUI Laws
In California, In order to convict a person of DUI, the prosecution must prove beyond a reasonable doubt that the accused drove a vehicle while under the influence of alcohol, drugs, or both ; or, that the accused drove a vehicle with 0.08 percent or more, by weight, of alcohol in their blood. Depending on the circumstances, a DUI case may be charged as a misdemeanor or as a felony. It may be charged as a felony where someone is injured (usually when an accident is involved), or where the accused has three or more prior DUI convictions (or convictions that count as a prior DUI, such as a wet reckless). These convictions must have occurred within 10 years of the new charge to count against the accused as a prior conviction.
When you are pulled over and the police officer suspects you of DUI, there are certain things that the law requires you to do, and certain things that are voluntary. The only thing that the law requires you to do is submit to a chemical testing of your blood or breath at the police station after being arrested. Everything else, such as answering their questions, performing field sobriety tests, or blowing into the Preliminary Alcohol Screening test (PAS test), is voluntary! (For more information, see our page on what to do if suspected of DUI)
DUI is a very serious crime in California. Depending on whether you are charged with a misdemeanor or a felony, a conviction could mean spending the next 4 years in a California state prison. In addition to criminal penalties, getting stopped for DUI puts your driving privilege in jeopardy. You need an experienced lawyer on your side in these cases not just because the law is confusing, but because it has a time limit. In California, you have 10 days to request a DMV hearing after being charged with a DUI. If you don’t request a hearing in that time, your license will be suspended for up to one year.
Many people facing DUI charges are afraid of losing their driver’s license. In Southern California, this is an honest fear. More than just about any place on earth, people who live in the Los Angeles area need a car. We drive to work. We drive kids to school. We drive to run errands. For most people, there isn’t a day that goes by that doesn’t have a good chunk of it spent behind the wheel.
Therefore, if you or a loved one has been charged with DUI in Los Angeles, having an experienced and aggressive Los Angeles DUI attorney fighting for you may mean the difference between freedom and prison and between keeping and losing your license. At Lewin Law Group, [our team of DUI attorneys/our founder, Chad Lewin have/has] over (inter # of years) of experience successfully defending clients from DUI charges. If, after reading our comprehensive analysis of California DUI laws below, you have questions or would like to speak to a Los Angeles DUI attorney, call attorney Chad Lewin/the attorneys at Lewin Law Group immediately for a FREE, CONFIDENTIAL consultation at (888) 546-5394. We are available 24 hours a day, 7 days a week to help you.
The rest of this article will discuss DUI as a result of driving while under the influence of drugs, also known as “drugged driving” or “DUID”, under Vehicle Code Section 23152(e) VC. For a discussion of DUI as a result of alcohol, please see our pages on Driving under the influence and Driving with a BAC of .08% or higher.
How is Vehicle Code 23152(e) VC DUI Prosecuted?
Under California Vehicle Code Section 23152(e) VC, in order to convict you of “DUID” or driving under the influence of drugs, the prosecution must establish the following elements:
- You drove a vehicle; AND
- While you were driving, you were under the influence of any drug.
- You drove a vehicle: The key to this element is that the prosecutor must prove that while you were driving, you were under the influence of drugs. It is not enough for the prosecutor to just prove that you were under the influence of drugs while inside or near a car.Obviously, when you are pulled over while driving, this element is easy to establish. Yet, it is in those situations where a cop does not personally witness you driving, such as when you are found sleeping in a car or a cop responds to an accident site that makes this element more difficult for the prosecutor to prove.To deal with these special situations, California court decisions have provided some guidance as to what constitutes driving and what evidence can be used to prove it. California courts have ruled that a “slight movement” of the vehicle is required to establish driving. Additionally, those same courts have stated that, in the absence of direct evidence, circumstantial evidence can be used to prove that “slight movement.” Circumstantial evidence is evidence that shows guilt, not directly, such as an eye witness, but through inferences made from the surrounding circumstances.
Example: Josh went to a party with friends. At the party, Josh did not drink alcohol, but he did take some PCP offered to him. Despite feeling the effects of the PCP, Josh decides to drive home, which is 10 miles away from the party. Josh ends up crashing into a tree on his front lawn and exists the vehicle, leaving his engine still running. A cop who didn’t see him drive, but sees his car on the lawn, investigates. The cop believes that Josh is exhibiting symptoms of impairment and asks him to take a breathalyzer. Incorrectly thinking he has no choice, Josh consents and after blowing a .0% BAC, the cop arrests him for suspicion of DUID or “drugged driving.”Josh will likely be found to have driven his car, despite no one, including the cop, actually witnessing him driving. This is because, based on the circumstantial evidence, such as the car being found 10 miles away from the bar, on Josh’s lawn with the engine running, and Josh being found alone with no evidence of other potential drivers, the inference can be made that Josh drove his car home.
Compare with example: Same as above, except that, instead of taking PCP at the party, Josh takes Ambien and instead of driving right away after leaving the party, Josh decides to sleep it off in his car before driving. While sleeping in the back seat, a cop notices Josh’s headlights are on and approaches his vehicle. The cop believes that Josh is exhibiting symptoms of impairment and asks him to take a breathalyzer. Incorrectly thinking he has no choice, Josh consents and after blowing a .0% BAC, the cop arrests him for suspicion of DUID or “drugged driving.”It will be unlikely that Josh will be found to have driven his car, since the circumstantial evidence against him is weak. Specifically, Josh was found sleeping in the back seat of her car, not in the driver’s seat. Additionally, his engine was not on and likely cool to the touch. Lastly, he was found legally parked 10 miles away from his home.
You were under the influence of any drug
- Definition of “Drug” Under the California Criminal Jury Instructions, a drug is a substance or combination of substances, other than alcohol, that could affect your nervous system, brain, or muscles to the point where your ability to drive like an ordinary sober person would be impaired. As you can see, the definition of “drug” is extremely broad for purposes of DUI. There is a common misperception that “drugged driving” only applies to the use of illegal drugs, which couldn’t be further from the truth. In fact, in addition to illegal drugs, a person can be arrested for and convicted of DUID if they drive under the influence of prescription drugs or even over-the-counter drugs. Therefore, is legally entitled to possess and ingest a drug, such as a cough medicine, is not a valid defense to DUID. The prosecution only has to prove that you were driving while under the influence of a drug, regardless of whether you used it legally or illegally.
Definition of “Under the Influence”
Under the California Criminal Jury Instructions, a person is under the influence of a drug if, as a result of taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.
Unlike DUI by driving with a BAC of .08% or higher, under Vehicle Code Section 23152(b) VC, there is no comparable threshold for a DUI by drug arrest. Therefore, in addition to your physical appearance and driving patterns, the prosecution will also rely heavily on expert witness testimony. Specifically, when an officer suspects you of being under the influence, but there is no evidence that you ingested any alcohol, law enforcement will typically call a drug recognition expert (DRE) to the scene to help determine whether you are under the influence of a drug.
A drug recognition expert (DRE) is a law enforcement officer with specialized training in methods and technology involving the identification of drug impairment. Once they are called onto the scene, they take over the investigation to determine whether a suspect is under the influence of drugs. Typically, a DRE will rule out alcohol as the possible substance causing impairment, conduct field sobriety tests (FST’s) with the suspect’s consent, take your vital signs, question you about your drug history, form an opinion about what drug or drugs you may have ingested, and ask you to submit to a chemical blood test or a urine test. Just like the other types of DUI, once you are arrested for DUID, there is implied consent that you will submit to a blood test or a urine test, as the presence of drugs cannot be determined through breath. If you fail to submit to this post-arrest test, your license may be suspended by the DMV for one year.
Defenses to California DUI–Driving With a BAC of .08% or Higher
In a time where nearly 70% of Americans are on at least one prescription drug, DUID prosecutions and convictions are on the rise.
Unfortunately, many law-abiding citizens who are prescribed drugs are not aware of their side effects until they’ve already been arrested for DUID. Additionally, with the proliferation of people being prescribed medicinal marijuana, law enforcement and prosecutors have been extremely aggressive when it comes to DUID.
That is why, if you find yourself or a loved one charged with DUID, you need a skilled Los Angeles DUI criminal defense attorney to fight for your future and make the prosecution’s case against you seem weak. At Lewin Law Group, our unshakable commitment to putting the interests of our clients first, coupled with our strong work ethic and commitment to leaving no stone unturned has resulted in countless acquittals, dismissals, and reduced charges for our clients. The following are but a few of the possible defenses our attorneys can utilize to win your case.
- Your Driving Pattern was Not Caused by DrugsThe jury instructions make clear that the manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of drugs. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.For example, you could have made driving errors because you were lost, tired, ill, or had trouble seeing due to darkness or weather.
- Your Physical Appearance was Not Caused by DrugsVery similar to the above defense, your attorney may be able to establish that you may have had the physical appearance of a person under the influence of drugs, such as blood shot eyes or a lack of balance, but for a reason other than drugs.
For example, you may have had blood shot eyes because you were awake all night working. It could also be that you suffer from allergies or illness or you became nervous and intimated by the cop.
- You Took Drugs Only After DrivingRemember, whether you were under the influence of drugs only matters during the time you were actually driving. If you took drugs only after you finished driving, then you cannot be convicted of DUID under the language of Vehicle Code Section 23152(e) VC.
Example: Before leaving work for the day, Amber finds out that she has been fired. Distraught, yet completely sober, she drives home less carefully than usual. All she can think about is how she just lost her job. As she nears her house, she accidentally crashes into her neighbor’s fence. Amber leaves her car there and enters her home. Unable to cope with the day she’s having, Amber begins “shooting up” heroin. In the meantime, Amber’s neighbor calls the police. By the time the police show up to her house, Amber is severely under the influence of heroin. Amber comes outside to speak with the police, the DRE believes she is under the influence of drugs, and she is arrested for DUID. Here, Amber should not be convicted of DUI, pursuant to 23152(e) VC, because, even though she was under the influence of heroin, she was completely sober during the period of time that she was actually driving. It was only after she finished driving that Amber took heroin and became under the influence of drugs.
Field sobriety Tests are Designed to Make you Fail
- Field sobriety tests are not really tests at all. Instead, they are physical agility exercises that are SUBJECTIVE in nature. In other words, the police officer, who already thinks you are DUI because he is giving you the field sobriety tests, is the one who is determining whether you pass or fail each test. The officer is looking for any and every mistake that you make. In fact, many people with absolutely no alcohol or drugs in their system “fail” these tests. Field Sobriety Tests may include any or all of the following:
- Nystagmus Test
- Walk and Turn
- Standing on One Leg
- Finger to Nose
- Alphabet Test
- Rhomberg Balance Test
- Hand Pat TestA skilled DUI defense lawyer can turn your failing these tests into you passing these tests. A lawyer at Lewin Law Group will know how to cross examine the police officer who administered and “graded” each test and get him/her to admit to all the things you did right. Additionally, Lewin Law Group lawyer will attack the validity of the tests and how they were administered.
- The Chemical Test was Not Properly Administered (AKA Violation of Title 17)The manner in which chemical tests are administered by the police is governed by Title 17 of the California Code of Regulations. If the police violate any of the protocols set forth in Title 17, the test results could be deemed inaccurate and, therefore, the prosecution may not be able to use them against you.
Title 17 Protocols for DUI Blood TestsUnder Title 17 of the California Code of Regulations, the police must do all of the following when administering a DUI blood test:
- Only a qualified individual listed in Section 13354 of Vehicle Code may draw the blood
- Nothing alcohol-based can be used to sterilize the site where the blood will be drawn
- There must be the correct amount of unexpired anticoagulant and preservative in the vial with the blood sample
- The blood sample must be properly maintained
A violation of any of the above requirements could cause an inaccurate blood test result.
- You had no Knowledge of Taking the DrugIf you had no knowledge of taking a drug, such as being slipped a drug, also known as involuntary intoxication, your defense attorney can make a strong argument that you should not be found guilty of DUID.
Additional Causes of Contamination
Your breath sample could also have been contaminated because of “RFI” or radio frequency interference. This occurs when interference from nearby electronic devices (cellphones, cars, etc.) affect the breath test instrument and causes inaccurate results.
Additionally, the temperature of your breath and/or the temperature outside can also cause inaccurate test results.
Criminal Penalties for California DUID
Under California law, a violation of Vehicle Code Section 23152(e) VC or DUID has the same penalties as a DUI by alcohol and will be counted as a DUI prior for any kind of DUI in the future, whether caused by alcohol or drugs. Like a DUI by alcohol, DUID could be charged as either a misdemeanor or a felony, depending on the specific circumstances of your case and whether or not you have prior DUI or “DUI-like” convictions (see our page on wet reckless).
Generally, most first, second, and third DUIs are charged as misdemeanors, yet the penalties become greater with each subsequent DUI.
The fourth DUI and each DUI after are usually charged as a felony, if you have three or more prior DUI or “DUI-like” convictions within the past 10 years of the current charge. (See our page on Felony DUI based on prior convictions). Additionally, regardless of whether you have any prior DUI convictions at all, if you are DUI and cause injury or death to another, you will face felony charges. (See our page on Felony DUI causing injury or death). Lastly, if you have ever been convicted of felony DUI, each subsequent DUI will be charged as a felony, regardless of how old the felony DUI conviction is. (See our page on Felony DUI based on prior Felony DUI conviction).
If convicted of California misdemeanor DUI, you face any or all of the following:
- Up to 5 years of Informal probation (see our page on probation)
- Up to 1 year in county jail
- Minimum of 48 hours if First DUI
- Minimum of 10 days if Second DUI
- Minimum of 120 days if Third DUI
- Minimum of 180 days if Fourth DUI or More (when charged as a misdemeanor)
- A fine up to $1,000
- Completion of an alcohol treatment program
- License suspension of 6 months to 4 years
If convicted of California felony DUI, you face any or all of the following:
- Minimum 5 years Formal probation (see our page on probation)
- Up to 4 years in a California State Prison
- Additional prison time is possible, if the DUI involved aggravating factors, such as great bodily injury to at least one victim or there are numerous injured victims
- Strike if DUI involved great bodily injury to at least one victim
- A fine up to $5,000
- Completion of an alcohol treatment program
- Up to a 5 year revocation of your license
- Designation as a habitual traffic offender by the California DMV
Driving under the influence regardless of BAC (Vehicle Code Section 23152(a) VC)
Under Vehicle Code Section 23152(a) VC, it is a crime for any person who is “under the influence” of any alcoholic beverage, regardless of that person’s BAC, to drive a vehicle. The penalties are identical to those of a violation of Section 23152(e) VC above, but the elements of the crime and available defenses are very different.
For more information, please see our page on DUI regardless of BAC.
Driving with a BAC of .08% or higher (Vehicle Code Section 23152(b) VC)
Under Vehicle Code Section 23152(b) VC, it is a crime for any person to drive a vehicle with a BAC of .08%. The penalties are identical to those of a violation of 23152(e) above, but the elements of the crime and available defenses are very different.
For more information, please see our page on DUI with a BAC of .08% or more.
Felony DUI (Vehicle Code Section 23152(b) VC)
As mentioned above, there are three circumstances where a person can be charged with felony DUI. Each type of felony DUI has different elements and available defenses.
For more information, please see our pages on Felony DUI based on prior convictions, Felony DUI causing injury or death, and Felony DUI based on prior felony DUI conviction.
Underage driving with a BAC of .01% or higher (Vehicle Code Section 23136 VC)
This is the least criminal DUI charge. Being charged with Vehicle Code Section 23136 VC isn’t technically the same as being charged with a crime. This is because drivers with a BAC between .01% and .05% aren’t legally drunk. Also, common medicines that contain alcohol can leave your BAC over .01%. The only penalty for this charge is a one year license suspension.
For more information, please see our page on Underage DUI.
Underage Driving with a BAC of .05% or Higher (Vehicle Code Section 23140 VC)
This is the most common underage DUI charge. Because anyone who gets caught with a BAC of .08% gets charged as an adult. This is the charge that really means “Underage DUI.” This charge won’t lead to jail time. But, an underage DUI conviction will automatically lead to a one year license suspension and a fine. Drivers 18 to 21 years old charged with DUI also have to attend a mandatory alcohol education program for at least three months.
For more information, please see our page on Underage DUI.
Contact a DUI Attorney at Lewin Law Group
Our Los Angeles DUI defense attorneys have a long track record of success in DUI cases. Without an experienced and aggressive attorney fighting for you, your conviction could result in the loss of your license and freedom and the destruction of your future. If you’ve been charged with DUI in California, time is of the essence! Every minute you wait matters, so call attorney Chad Lewin at Lewin Law Group immediately for a FREE, CONFIDENTIAL consultation at (888) 546-5394. We are available 24 hours a day, 7 days a week to help you or your loved ones.
- Vehicle Code Section 23152(a) VC.
- Vehicle Code Section 23152(b) VC.
- Vehicle Code Sections 23152 and 23153 VC – Felony DUI – punishment.
- Vehicle Code Section 23152(e) VC.
- People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 8.
- Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2110 – Driving Under the Influence.
- newsnetwork.mayoclinic.org, Nearly 7 in 10 Americans Take Prescription Drugs, Mayo Clinic, Olmsted Medical Center Find
- Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2110 – Driving Under the Influence.
- Title 17, section 1219.1 — Blood Collection and Retention
- Vehicle Code Section 23153 VC.
- Vehicle Code Section 23550 VC.
- Vehicle Code Section 23550.5 VC.
- Vehicle Code Sections 23536 – 23548 VC.
- Vehicle Code Section 23566 VC.
- Vehicle Code Section 23136.
- Vehicle Code Section 23140.