A charge of driving under the influence can involve alcohol, drugs or both. California Vehicle Code 23152(f) makes it a crime to drive under the influence of drugs. Driving under the influence of drugs occurs when the drugs impair the driver to the point that he/she can no longer drive like a sober driver under similar circumstances. If you drive under the influence of any drug, whether prescription or illegal, you subject yourself to prosecution for DUI.
The biggest difference between a DUI involving alcohol and DUI involving drugs is how the offenses are investigated. A drug DUI investigation involves the use of a drug recognition expert (“DRE”). A DRE is a police officer trained to recognize impairment in drivers under the influence of drugs other than, or in addition to, alcohol.
The Los Angeles Police Department originated the program in the early 1970s when LAPD officers noticed that many individuals arrested for DUI had very low or zero alcohol concentrations. The LAPD DRE program attracted the National Highway Traffic safety Administration’s (NHTSA) attention in the early 1980s and the two agencies collaborated to develop a standardized DRE protocol, which led to the development of the DRE Program.
During the ensuing years, NHTSA and various other agencies and research groups examined the DRE program. Their studies demonstrated that a properly trained DRE could successfully identify drug impairment and accurately determine the category of drugs causing such impairment.
Unlike an alcohol-related DUI, there is no blood alcohol concentration for a drug DUI, and it can be difficult to prove in court. Whether alcohol related or drug related the penalties are similar under California DUI laws.
Pursuant to his/her training, a DRE has several tests that can be given to investigate the presence of drugs. First an officer will conduct a breath test and if the impairment is consistent with the results of the breath test then the officer will not normally call the DRE. If the impairment is not attributed to the breath test results the officer will then call the DRE in.
The DRE will look at your behavior and appearance. He/she will conduct a preliminary examination to ascertain whether you are suffering from an injury or condition unrelated to drugs. The DRE will also perform the horizontal gaze nystagmus (HGN) test to look at the condition of your eyes. The DRE will have you perform psychophysical tests that are like the field sobriety tests. He/she may take your vital signs and take several pulse readings.
After completing the evaluation, the DRE normally requests a urine, blood and/or saliva sample from the subject for a toxicology lab analysis. The DRE protocol is a compilation of tests that physicians have used for decades to identify and assess alcohol- and/or drug-induced impairment.
Like an alcohol DUI, a first offense is a misdemeanor in California. The penalty is the same as an alcohol DUI.
|1st offense Penalty||Misdemeanor|
|Fine||Max of $1000|
|County Jail||0 – 6 months|
In determining a sentence a judge will look at the circumstances of a case including any aggravating factors that may enhance the penalty.
If you are arrested for DUI and the prosecution alleges that you were on drugs, you will be charged with only the driving under the influence charge. However, if you refused to take the blood or urine test after you were arrested, the prosecution will allege a sentencing enhancement that you refused a required test. This has the same consequences as the refusal allegation in a DUI alcohol charge. The DMV will suspend your license for one year without the ability to obtain a restricted license if you lose your DMV hearing.
Having a child in your vehicle when driving under the influence of drugs or alcohol is an aggravating factor that will increase your punishment. Typically this results in an increase in the jail time served. However, having a child in the car also can result in a charge of child endangerment, punishable under the California Penal Code.
Child endangerment is defined as any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered.
Child endangerment is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.
Is DUI drugs a Felony?
It can be. If it is your 4th DUI (whether alcohol or drugs) within 10 years, the prosecutor may file felony charges. Alternatively, if there was an accident where someone was seriously injured, the prosecutor may file felony charges regardless of whether or not you have any prior DUIs for alcohol or drugs.
Can you get a DUI For taking Prescription drugs?
Yes. The prosecutor may file DUI charges if you drive under the influence of any drug that impairs your ability to operate a motor vehicle with the caution or care of a sober person under similar circumstances. This means that even if you are taking a valid prescription drug, and the drug impairs you mentally or physically for the purposes of driving, the prosecutor may file a DUI if you are arrested.
Can you get a DUI for Driving High?
Yes. It is illegal to drive under the influence of ANY drug (even legal ones.) This means that if the prosecutor can prove that you are impaired for the purposes of driving (high), and that you drove under the influence, you will be charged with DUI even if no alcohol was involved.
Is it illegal to drive on benzodiazepines?
Yes. Benzodiazepines is a class of drugs that impairs your ability to operate a motor vehicle. There is a warning label on the prescription bottle that indicates that the drug can cause impairment and should not be taken if the patient plans to drive. Because benzo’s like Xanax causes impairment, the prosecutor can charge you with a DUI if you are arrested after driving under the influence of xanax or other benzodiazepines (even if you have a valid prescription.)
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