DRUG DUI IN CALIFORNIA
Arrested for Drug DUI?
If only drug(s) are involved (both legal and illegal), prosecutors will usually charge you with V.C. 23152(a), which does not specify a particular concentration level, just that you are “impaired” for purposes of driving. Impairment can be established by things such as bad driving, unsteady gait, nystagmus, poor performance on Field Sobriety Test(s)…etc.
PENALTIES FOR COURT CONVICTION OF DRIVING UNDER THE INFLUENCE ( VEHICLE CODE §23152 )
Drug DUI Penalties
Minimum and maximum sentences with probation (3-5 years):
A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), up to 6 months in jail, and attendance in a 3, 6, or 9 month DUI program. As a result of the court conviction, the DMV will suspend your license for 6 or 10 months, depending on the alcohol program ordered, but a restricted license may be requested. Additionally, you will receive 2 points on your driving record.
Second Offense within 10 years
A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), a minimum of 4 days and up to 1 year in county jail, attendance in a 18 month DUI program, and installation of an interlocking device for up to 3 years. As a result of the court conviction, the DMV will suspend your license for 2 years, but a restricted license may be requested with IID for 1 year. Additionally, you will receive 2 points on your driving record.
Third Offense within 10 years
A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), a minimum of 120 days and up to 1 year in county jail, attendance in a 18 month DUI program, and installation of an interlocking device for up to 3 years. As a result of the court conviction, the DMV will revoke your license for 3 years, but a restricted license may be requested with IID for 2 years. Additionally, you will receive 2 points on your driving record.
Fourth Offense within 10 years
A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), a minimum of 180 days and up to 1 year in county jail, attendance in a 18 month DUI program, and installation of an interlocking device for up to 3 years. As a result of the court conviction, the DMV will revoke your license for 4 years, but a restricted license may be requested with IID for 3 years. Additionally, you will receive 2 points on your driving record.
Type of Penalties
In California, if you are convicted of a Drug DUI, you may face the following penalties:
The IID device will randomly require a alcohol-less breath sample for the car to start and continue runing. It is often required after a DUI conviction and/or an adverse ruling at the DMV Hearing.
Also known as Work Release, this is often required for a DUI with accident, and can sometimes be an alternative to jail (8 hrs. = 1 day jail). An example is picking up trash on the freeway. It consists of harder work than community service, but fewer hours.
An ankle bracelet is often negotiated as a subsitute to jail where the defendant has medical issues or might lose employment due to a long sentence. The wearer is allowed to go to work, but must return home by a certain hour. The device can also detect alcohol.
If convicted of a first DUI, the mandatory period of probation is 3 years. Repeat offenders may face up to 5 years of probation. This probation is informal (ie. no probation officer) unless the DUI is a felony.
DRUG DUI DEFENSE STRATEGY
Don’t Assume You Have to Plead Guilty
Unlike alcohol DUI, which alleges a specific concentration level of alcohol in your system at the time of driving (over which you are deemed ‘impaired’), in a drug DUI there is no such level alleged. One reason is that there are too many drugs out there, both legal and illegal, and the government isn’t very good at measuring how much of a particular drug is in a person’s body, let alone the time the person took the drug.
Which is why drug DUIs are often very defensible by a skilled DUI defense attorney. A lot of the defense involves not giving up pushing forward despite the prosecutor’s seeming unwillingness to change the initial offer. It is not hard to see how a prosecutor can have a weak case when it can’t even be proven when you took the drug; the fact is, some drugs, such as marijuana, can stay in your system days after you took it, and if no concentration level can be established, there cannot be a rational connection between “taking drugs” and “impairment” for purposes of driving.
In drug DUIs, it is more important than ever to exercise your right to remain silent. Because a lot of what the government cannot prove can be proven by your own mouth. For example, cops are trained to ask questions such as:
“When did you take this drug?” “How much did you take?”
“Do you feel the effects?”
The investigating/arresting officer who writes the police report is often not a trained DRE (Drug Recognition Expert), so their observations and conclusions often lack a scientific basis.
Police officers will also help themselves by writing all kinds of unfavorable observations about your physical appearance, demeanor, speech and, of course, performance of Field Sobriety Tests, because these things can help the prosecutor support the conclusion of “impairment” when scientific evidence is lacking. It takes a skilled DUI defense attorney to cross-examine the police officer(s) about these obviously biased observations.
DRUG DUI DEFENSES
Effective Defenses against Drug DUI Charges
1. Lack of Probable Cause
Argues that law enforcement didn’t have valid reasons to initiate a traffic stop or DUI investigation.
2. No Driving Defense
If there’s no evidence you were operating the vehicle near the time of the arrest, we challenge the fundamental premise of your DUI charge.
3. Innocent Explanations
Argues that symptoms mimicking drug impairment may be due to fatigue, allergies, illness, or anxiety, among other factors.
4. Unreliable DRE Evaluation
Police officers will sometimes take a short course to be qualified as a Drug Recognition Expert, but their expertise is limited. Bias aside, the detection of a drug says nothing about the amount ingested, let alone how that amount affects a particular individual.
5. Blood Split Motion
The defense is entitled to an independent analysis the defendant’s blood sample, which law enforcement is required by law to preserve for 1 year.
6. Biased Field Sobriety Tests
FSTs are designed for a person to fail, because police are instructed only to write down what you did wrong, not right. Moreover, they don’t factor in nervousness, language barrier, road/weather conditions…etc.
7. No Miranda Warning
Miranda must be given if there is post-arrest interrogation. We pinpoint the time of the actual arrest/cuffing and try to exclude statements made thereafter absent Miranda.
8. Violation of Title 17 Procedures
Police will often not correctly follow procedures for collecting, storing, analyzing, and recording blood and/or urine samples as required by Title 17.
9. Drug Tolerance
Regular drug users may have a higher tolerance, meaning they’re less likely to be impaired at the same levels as infrequent users.
10. Alternative Causes for Impairment Symptoms
Argues that recognized signs of drug impairment could be due to other factors unrelated to drug use.
11. DUI Checkpoint
A DUI checkpoint must be properly set up and maintained, otherwise the stop itself lacks probable cause.
12. Forced Blood Draw
Fedral law requires a warrent for a blood draw unless there is consent. Lacking consent / warrent means the blood result can be excluded.
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Freaqent Asked Questions
I just got arrested for a drug DUI and I wasn’t drinking. What can I do?
While the consequences of a drug DUI are largely the same as those of an alcohol DUI (less the DMV portion), drug DUIs are harder to prove, because there isn’t a specific concentration level that the state deems as impairment. Therefore it is even more important to fight the case in court
If I was arrested for a drug DUI, do I have to request a DMV Hearing within 10 days?
No, you don’t have to request a DMV Hearing. A DMV Hearing is only triggered when alcohol is involved in a DUI.
If I was arrested for DUI with both drugs and alcohol, but the alcohol was under 0.08%, do I still need to request a DMV Hearing?
When alcohol in any amount is involved, it is always safer to request a DMV Hearing, since the BAC level that would trigger a DMV Hearing varies. For example, if you are under 21 or are on prpbation for a DUI, even a 0.01% reading would trigger the DMV.
CALIFORNIA DRUG DUI ATTORNEY JEFF YEH
Call THE DUI SPECIALIST
If you’ve been charged with driving under the influence of drugs, whether prescription or nonprescription, it’s crucial that you reach out to Law Office of Jeff Yeh for legal representation. As a dedicated DUI attorney, I have personally handled countless Drug DUI cases, leveraging my expertise to defend my clients effectively and negotiate with prosecutors to achieve the best possible outcomes. Don’t hesitate to secure your future. Schedule your free consultation today by filling out the contact form below or by calling me directly at (213) 446 – 2495.