Drugs refer to any substance that could impair your judgment and make it difficult for you to perform activities that a sober person would, particularly driving. Driving under the influence of drugs is a serious offense in Los Angeles, California. For this reason, you should have an attorney who can represent you well if you face a DUID charge. At The LA Criminal Defense Law Firm, we have experience with handling DUID cases.
DUID Under California Law
Driving Under the Influence of a Drug (DUID) is driving under the influence of either illegal or prescribed medication or a combination of drugs and alcohol according to California Vehicle Code 23152(f) VC. However, driving under the influence of various drugs and alcohol is a violation of California Vehicle Code 23152(g).
According to California law, a drug is any substance or a combination of different substances that could impair your brain, muscles, and the nervous system to a point you find it difficult to drive like a sober person. Some of the drugs that can impair your judgments include:
- Illegal drugs include cocaine and heroin.
- Prescription medications, for instance, Vicodin and OxyContin.
- Over-the-counter drugs.
- Legal drugs, for example, marijuana.
Elements of DUID
The prosecutor must show that certain elements exist in the crime for you to be successfully charged and convicted for DUID. These elements are:
Driving a Vehicle
The prosecutor should provide evidence showing you were inside the vehicle and driving it.
The Influence of Drug
Being under the drug’s influence is an essential element for the act to be considered a crime. Therefore, the prosecutor should prove beyond a reasonable doubt that you were under the influence.
It is not enough that you were under the influence of drugs or driving; the prosecutor should prove that the drugs impaired the driving.
Arrest Process for DUID
When a police officer on the highway sees you swerving or driving erratically, he/she will pull you over. Swerving or any other form of erratically driving is enough probable cause for the officer to stop you on a highway. However, if the police stop you without any reasonable suspicion, your attorney may file a motion to suppress any evidence collected after the arrest.
Once you have stopped, the officer will approach you and ask for your identification documents, including your license and registration. As you take out these documents, the police will take note of your behavior. So if you are fumbling or smelling of alcohol, the officer will perform a field sobriety test (FST) on you.
An officer requests an FST when he/she suspects you are under the influence of something, even if there is no alcohol smell. You can decline the test since police use the test to gain reasonable suspicion to arrest you for driving under the influence. If the officer believes that you are under the influence of alcohol, he/she will perform a preliminary alcohol screening (PAS) test. The officer might also look for any drugs that may be in your car.
In case the breathalyzer comes back negative, but you still appear impaired, the officer will believe you have drugs in your system. The officer will order a blood test, which is typically done at the station after the arrest. When arresting you, the officer does not have to inform you of your Miranda rights. The rights are based on the fifth amendment rights against self-incrimination. The only time the officer must tell you of the rights in a DUID arrest is when he/she intends on interrogating you or when you are under custody and not free to leave.
Miranda rights include:
- The right to stay silent
- The right to consult with an attorney
- If you choose to speak, the prosecutor will use your testimony in a court of law.
- If you talk to the interrogating officer and wish not to speak, you can invoke the right to stay silent, and the officer will stop the interrogation.
- If you don't have money to hire your representation, the government will appoint an attorney for you at its expense.
Once at the station, the officer will call a drug recognition expert(DRE) to perform the drug tests. However, the DRE can also come to the scene before your arrest. A drug recognition expert is a law enforcement officer trained to test for drug impairments on suspects. When the DRE arrives, he/she will perform a 12-step evaluation to determine whether you are indeed under the influence of drugs. The evaluation includes:
- Check whether the BAC level is not a sign that you are impaired by alcohol.
- Interview the officer who arrested you on the events leading up to that moment.
- Check and note down your physical symptoms. Some of these symptoms include:
- Your pulse rate.
- The size of your pupils.
- Traces of drugs in your mouth or nostrils.
- Mark signs indicating injections of drugs.
- Rigid or flaccid muscels.
- An eye-tracking exam for horizontal gaze nystagmus (HGN) is an involuntary eye movement that shows you have drugs in your system.
- Administer field sobriety tests (FSTs) for the second time. Some of the tests in the FST include one-leg stand the test, finger to nose the walk and turn, and the Romberg balance test.
- The expert will ask you questions concerning any drug use as he/she observes your behavior.
- Ask you to submit either a blood or urine test.
Once the DRE has completed the evolution, he/she will determine whether you are impaired and the drugs in your system.
Defenses to DUID
When arrested and charged for DUID, it is upon your defense attorney to represent you diligently. Here are all the defenses your attorney could use in court.
No probable Cause to Stop You
The police must have a probable cause to stop you on a highway. One of the suspicious elements is swerving. If your attorney can prove that the officer did not have a probable cause, then the judge can dismiss the case.
No reasonable Cause for Arrest
Just like the police should have a reasonable cause to stop you, they should have a reasonable cause to arrest you. If there was no evidence showing the presence of drugs in your body, then there was no ground for the officer to arrest you.
The Officer Did Not Read the Miranda Rights
Failure by the interrogating officer to read your rights before an interrogation is a violation of your fifth amendment rights. Therefore, your attorney can argue that whatever information or evidence the police collected is not admissible.
You Were Not Really Under Influence
Your attorney can also argue that having drugs in your system does not mean you were under the influence. There is no correlation between drug quantity in your body and impairment, unlike DUI, where a BAC of .08% of more automatically means you are impaired. Also, people's bodies are different, so what might impair you may not impair someone else.
Physical or Medical Explanation
If the officer arrested you because your behavior mimicked the signs of drug impairment, then your attorney could argue against that. Various physical and medical conditions have symptoms that are similar to those of drug impairment. Some of these conditions include Allergies, Anxiety or nervousness, Diabetic ketoacidosis, or fatigue.
Chemical Results Aren't Always Reliable
A positive result test from a chemical test doesn't always prove that you had drugs inside your body systems. Sometimes a positive result could be due to several reasons such as:
- The medical equipment used in the testing were contaminated
- Your blood was not drawn correctly
- The technicians did not store the samples properly
- The technician did not handle the samples properly
Other Cause of the Positive Drug Impairment
Your behavior could be influenced by something else that was not drug-related. Your attorney could argue that the pupil size could mean you were excited or affected by light. Also, if you had poor balance, the reason could be you had worn uncomfortable shoes.
Flaws in the drug recognition expert (DRE)
A drug recognition expert is someone with special training to recognize drug impairment cases. Your attorney should know how these experts are qualified and the procedure they should follow during the DUID examination. With this knowledge, your attorney can look for clues and flaws in the test administration. Any errors in the expert testimony could lead to your case’s dismissal since most DUID offenses rely on DRE testimonies.
You Were Not Driving
For the prosecutor to successfully prove his case in DUID, he/she must show that you were driving the vehicle. If your attorney can show that you were not driving, then the judge could dismiss the case. For instance, if you realized you were impaired, then decided to sleep in the car instead of driving, the police had no right to arrest you.
You Did Not Willingly Take the Drugs
The prosecutor should show that you knew about the effects of the drugs and how it would affect your abilities to drive but still chose to take them and drive. If your attorney can show that you were drugged or did not intentionally take the drugs, then that could be a good defense for your case.
Keep in mind that having a valid prescription for marijuana is not a defense in court. The law focuses on driving under impairment, not whether you were high on legal or illegal drugs.
Penalties for DUID
A DUID in California is a wobbler offense. A wobbler means the prosecutor may charge the offense as either a misdemeanor or a felony. The prosecutor will only charge the offense as a felony under aggravating circumstances, such as if you caused an accident or if that is not your first DUID offense. If you are convicted for a misdemeanor, you will face:
- DUI probation of three to five years
- $1,800 fine if this your first offense
- Mandatory three months attendance in California DUI school
- A possible jail term but only in the worst-case scenario
- A DMV license suspension.
If this is your second DUID conviction within ten years, you will face:
- A 90 to 0ne year jail term
- A DMV license suspension for two years
- Completion of a DUI program
- A few days’ jail term according to California Vehicle Code §23542
For the third offense within ten years, you will face:
- 120 days to one year in jail
- A DMV license suspension of three years
- A habitual traffic offender designation of three years
- Attendance of 30 months’ program in a DUI program
- Jail term.
If this is your felony conviction, you will face:
- Up to four years in county prison
- A maximum fine of $5,000
- A one-year suspension or possibly revocation of your driver's license
If you refused to take a chemical test, you would face the following consequences:
- An automatic one year DMV suspension
- 48 hours sentence in county jail if you are not convicted for DUID
You are also likely to face other consequences following a DUID conviction. You will have a permanent record that will reflect on every background checks, including employment and housing.
You will also pay higher car insurance premiums. The insurance courier will determine the number of premiums you will pay.
If you have a DUID conviction, you will be required to have an SR22 certificate, which is proof of minimum liability coverage before your license is reinstated. The certificate may also mean you will purchase high-risk insurance.
DMV Hearing Process
Once the police have arrested you and taken you to the police station, they will issue you with a temporary paper driving permit and take away your driver’s license. The temporary paper driving permit will only last for 30 days until the DMV court decides on the fate of your license. The police will then book and cite you for the offense. You will then stay in jail until realized either on bail or on your recognizance by the judge.
A DMV hearing is held at the DMV office to determine whether your driver's license should be revoked or not. You have to request the hearing within ten days after your arrest; otherwise, your license will be automatically suspended. You have to contact your DMV driver safety branch office to schedule the DMV hearing, also known as Driver Safety Administrative Per Se “APS” Hearing.
The burden of proof is with the DMV hearing officer who also presides over the process. The officer must prove beyond a reasonable doubt that the arresting officer had a probable cause to arrest you for DUID. The APS officer will also provide evidence showing you had drugs in your system. That, together with the arresting officer's statement, is enough to have your license suspended. Therefore, your attorney should fight to have this evidence and statements not submitted at the hearing.
The outcome could be either a win or a loss. If you win, it means you will retain your driving privileges. Winning could also show that the state has a flawed case against you, which could work in your favor during the criminal court process. The prosecutor could agree to a plea bargain or even a dismissal of your case. Keep in mind that a DMV hearing and a DUID court hearing are different. So, if the prosecution believes it has strong evidence against you, there won’t be the need for a dismissal or plea bargain negotiation.
If you lose, your DMV license will be revoked, and the length of the suspension will depend on whether that is your first or subsequent offense. Your attorney could also gain elicited information that could encourage the DUID prosecutor to reduce your charges.
DUID Trial Process
Arraignment is your first court appearance, where the judge will read the charges the prosecutor has brought against you. The judge will inform you of your rights concerning the trial and ask you whether you have legal representation. If you don't have an attorney, the judge will ask a public defender to represent you. The judge will also ask how you plead concerning the charges. You can plead guilty, not guilty, or no contest. A guilty or no contest pleas have a similar consequence. They show that you agree that the prosecution has enough evidence to convict you for the DUID offense. If you plead not guilty, the case will proceed to the next stage.
California has two types of trial, the bench trial, and the jury trial. In a bench trial, the judge will preside and give a verdict after the trial, but in a jury trial, 12 members of the society will preside over the case. The trial will begin with opening arguments from both the attorneys. Since the burden of proof is with the government, the prosecutor will introduce the evidence and witnesses. The first witness is the arresting officer.
The arresting officer will testify about how he/she perceived you to be impaired at the scene. The officer will testify that you exhibited signs of drug impairment such as slurred speech, watery eyes, and a flushed face. The officer can also say you refused to take a test when you were asked to take it. Some of the facts that the prosecutor would want to establish from the officer’s testimony are:
- The manner of your unsafe driving
- Your physical symptom that showed intoxication
- How you performed on field sobriety tests and the breathalyzer test
The second witness for the prosecution is the Drug Recognition Expert (DRE). The expert will start by testifying and giving in length his/her training and qualifications. The expert will also provide a detailed explanation of the 12-step evaluation process. He /she will show how the evaluation led to the conclusion that you were drug-impaired.
Your attorney will cross-examine the witnesses. Remember, your attorney's responsibility is to cast doubt on the prosecution's case and not prove that you're innocent.
The attorneys will conclude with closing arguments; then, the judge will advise the jury about the law concerning the deliberation. The jury will then be allowed to deliberate privately as the court goes into recess. Once the jury has reached a unanimous verdict, the court will reconvene to hear the verdict. If not guilty, the judge will release, but if guilty, you will be taken back into custody as you wait for sentencing, which the judge will set at a later date.
The judge will focus on a few facts before sentencing. These facts include:
- Your prior criminal history
- Whether a drug treatment program will benefit you
- Any aggravating circumstance such as injury to another person
- The circumstances that led to the offense
Related Charges to DUID
Vehicular manslaughter is negligently driving a vehicle resulting in the death of another person, according to California Penal Code 192(c) PC. The offense is a wobbler, which means the state will charge it as either a misdemeanor or a felony. As a misdemeanor, you will serve:
- Misdemeanor probation
- One year in a county jail
- A $1000 fine
For a felony conviction, you will serve up to six years in state prison, summary probation, and pay a fine of $10,000.
California DUI Law & Commercial Driver’s License
Vehicle Code 23152(d) makes it an offense to drive a large commercial vehicle with a BAC level of 0.04% or higher. If you are a first time offender, you will face:
- Informal probation
- You will serve one year in the county jail
- Up to 36 months in a DUI school program
- Up to a $1000 fine
- A one-year license suspension
Find a Criminal Defense Attorney Near Me
The penalties for a DUID are as harsh as those for a DUI. For this reason, you should hire an attorney with enough legal expertise to help you minimize the charges or avoid penalties. An attorney from The LA Criminal Defense Law Firm is the right fit for your case. Our attorneys have the necessary skills to handle cases involving DUID. We will walk you through all the case facts and determine the best defense for your case. You can reach us at 310-935-1675.