Anyone who drives with a blood alcohol concentration (BAC) of 0.08% or higher will be charged with a DUI under California law1. You can also be charged with a DUI regardless of what your BAC is, or if you refuse a chemical test of your BAC so long as your driving conduct and demeanor are consistent with someone who is impaired by alcohol2.
This also applies to any driver impaired by a drug they ingested, whether it is a controlled substance, legally prescribed or not, for which they can be charged with driving under the influence of drugs (DUID). And then there are those who have been drinking and doing drugs whose driving and judgment has been affected by this combination. This particular offense is covered by VC 23152(g)3.
You can be charged with both DUI and DUI of Drugs in California under California Vehicle Code 23152(g).
In these circumstances, the officer is generally faced with a situation where you are observed to have been drinking and perhaps under the influence of a drug. An officer will usually request that you submit to a breath test under the state’s implied consent law if alcohol is presumed the main cause of your alleged impairment.
If your BAC is at least 0.08%, the officer will charge you with DUI and with having a BAC of 0.08%, a separate offense.
However, if drugs are the suspected primary cause of your alleged impairment, then the officer may request that you take a blood or urine test. This usually is requested if you took the PST, or portable screening test, and it indicated a low level of alcohol.
If this is the case, the officer, if a DRE, may then administer certain tests to detect the presence of a drug in your system. A DRE certified officer may also be called to the scene. If the officer suspects drug use, you will be asked to provide a blood or urine sample pursuant to the implied consent law.
A blood or urine sample can detect both the presence of alcohol and other drugs in your system. If a controlled substance or a medication such as Ambien or Oxycodone is found along with alcohol, then you can be charged with both DUI and DUID. Even with a low BAC, its combination with a drug could produce impairment.
To be convicted under CVC 23152(g), the following elements must be proven4:
- You were operating a motor vehicle
- With a BAC of at least 0.08%
- Or you were driving while under the influence of alcohol
- And you were driving under the influence of a drug
You can, of course, be convicted of either a DUI or a DUID individually.
There is little difference between being charged with a DUI or a DUID when it comes to the penalties if you are convicted. Regarding proof of impairment, most DUI defendants submit to a chemical test of their blood or breath under the implied consent law. This refers to your obligation to provide a sample of your breath or blood if a peace officer has probable cause to believe you were driving under the influence of alcohol or a drug. It is considered a rebuttable presumption that you had a BAC of 0.08% or more at the time you drove if the breath or blood test was taken within 3 hours of driving5.
If you refused testing, or your BAC was just below the limit but you exhibited signs and symptoms of impairment from alcohol, then you can still be charged and convicted of DUI. This is based on the officer’s personal observations or any videotape depiction of your demeanor that may be taken either from a camera mounted on the police vehicle or on the officer’s uniform. Also, your refusal to take a chemical test can be used as evidence of your guilt at trial6.
- Odor of alcohol
- Slurred speech
- Inability to follow simple instructions
- Poor performance on field sobriety tests
- Unsteady gait
- Erratic driving conduct
- Flushed appearance
- Asleep at the wheel
- You admitted to drinking or that you had too much to drink
The DMV will automatically suspend the driving privileges of any motorist with a BAC of at least 0.08%. If a minor, the limit is .02%, or a zero tolerance level, while commercial drivers will face suspension with a BAC of only 0.04%. The procedure is that your regular license is confiscated and a temporary 30-day one is given along with an advisory that you have 10-days to challenge your suspension by fling a request for an Administrative Per Se (APS) hearing before the DMV or your license will be suspended when the 30-day period expires.
At the APS hearing, you can challenge your test results as well as other issues regarding the constitutionality of your detention and stop and if your refusal was reasonable but only if you submit a the written request for the APS hearing with the DMV within 10 days of your DUI arrest.
You can challenge your BAC results by retaining an attorney who has intimate knowledge of the protocol and procedures regarding the operation of a breathalyzer. There are numerous conditions, medical and environmental, that can account for a false high BAC reading. Also, the breathalyzer machine must be calibrated and serviced regularly. An examination of the service and maintenance records may reveal a failure to follow the recommended instructions ((People v. Adams (1976) 59 Cal.App.3d 559,567)). There are also inherent defects or limitations that can produce false high readings.
If you had just left a bar and was stopped and you took a chemical or BAC test shortly thereafter that registered 0.08%, you can argue that your BAC was below that at the time of driving and only reached its highest level when you were tested an hour later. This is because alcohol can take from 45 minutes to one hour to be absorbed into your nervous system and impair you.
Experts in breathalyzer operation may be needed to rebut the testimony of the officer who conducted the test or that of a defense expert. They can be expensive but if you face a long jail or prison sentence or your livelihood is affected, the expense can be worthwhile.
If no test was taken, then other reasonable explanations for your conduct can be presented:
- Fatigue can account for speech pattern, falling asleep or poor performance on field sobriety tests
- An odor of alcohol is not an indication of how much you drank or that you are impaired
- Nerves can affect demeanor, speech, fumbling or not understanding instructions
- A medical condition can affect coordination
- Speeding, making an unsafe lane change or only slowing at a stop sign as well as other behavior are committed by drivers who are perfectly sober
- A videotape of your stop and arrest can indicate no signs of impairment
- There is no correlation between the amount of a drug in your system and impairment
- Many drugs remain in the body for days or even weeks and have no effect
- Fatigue, nerves, illness or a medical condition can mimic the symptoms of drug impairment
- Gaze nystagmus test that detects the involuntary jerking of the eye and is an indication of drug use naturally occurs in some persons
- Pupil size, another drug indication, is also affected by darkness, light or nervous tension
- A blood test does not indicate whether the amount of the substance is sufficient to cause impairment
- The blood or urine sample was improperly handled and was contaminated
- No proof of chain of evidence in how the sample was recorded and stored
The penalties for DUI of alcohol and drugs may not be any more severe than if you were convicted of either a DUI or DUID. In most circumstances, it is a misdemeanor but you face felony charges if this is your fourth DUI offense in 10 years, have a prior DUI felony conviction or you were involved in an accident with serious bodily injuries or a fatality.
For a first offense, you face:
- Fine of $390 to $1000
- Jail time of 48 hours
- Or community service in lieu of jail
- Probation of 3 to 5 years
- License suspension of at least 6 months or one year if you refused testing
- Minimum of 3-month DUI education class
Collateral consequences include substantially increased insurance premiums for about 3 years. You may get a restricted license after completing your DUI class and other conditions that is valid for driving to and from work and other limited purposes.
Is there any difference between a DUI and a DUID?
There is no distinction as far as being charged under Vehicle Code 23153(a) or (f) as the penalties are the same. You must be found to have been impaired while driving, regardless if your impairment was caused by alcohol or drugs or any combination of them. The only difference is that you must be convicted of a DUID before the DMV will suspend your driver’s license.
Can I be arrested or lose my license if my blood or urine test shows that there is a controlled substance in my system?
You cannot be arrested for possession or for being under the influence of a drug (HS 11550) on the basis of a positive drug test alone unless you are under probation wherein there is a condition that you do not use drugs. Otherwise, you cannot be convicted unless there is circumstantial evidence that you were impaired by the drug while driving that can include the officer’s observations of your driving conduct and demeanor. A DRE certified police officer can testify that certain tests showed the presence of drugs that was corroborated by your positive blood or urine test. You cannot lose your license unless you are convicted of DUID or a DUI or for refusing chemical testing.
If I take the breath test and it was negative, but the officer now tells me I also have to take a blood or urine test because he suspected I was doing drugs, can I refuse?
The law does not require that you take another chemical test unless you were physically incapable of taking it. If your breath test showed you had no level of blood alcohol or it was below 0.08%, the officer cannot insist that you take another test since you are also suspected of being impaired by drugs.
Am I required to take the field sobriety tests including the gaze nystagmus test and the PST?
No, the only test you are legally obligated to take is a chemical test of your breath, blood or urine in some cases. If you refuse, you will lose your license for at least one year or longer if you have multiple DUI or DUID convictions. Your refusal can also be used against you at trial to show consciousness of guilt. There are no penalties if you refuse any or all field sobriety tests including the PST and gaze nystagmus test.
Child Endangerment—PC 273a
If your passenger was under the age of 14, you may face child endangerment charges, especially if your BAC was high and your blood or urine sample revealed a controlled substance. Should you have caused an accident, then it is more likely you face this additional offense. Child endangerment is charged either as a misdemeanor or as a felony.
- If convicted of a misdemeanor, you face up to one year in county jail.
- If your driving conduct posed a high risk of great bodily harm or death to the child, you face a felony with a sentence of 2, 4 or 6 years in state prison.
Health and Safety Code 11550
You may face a charge under Health and Safety Code 11550 for being under the influence of a drug, a misdemeanor. To be convicted under this section, the prosecution need only prove that you were impaired to any detectable degree and not to the degree required under Vehicle Code 23152(a). Further, you are not eligible for diversion if you are convicted of a DUI.
DUI Expungement – How to get a DUI off your record
With the knowledge and expertise of the Aizman Law Firm on your side, a los angeles DUI attorney can help to broker a charge reduction to a lesser offense in your case, or strategically develop valid legal defenses to attempt to garner a dismissal. Contact us at 818-351-9555 for a free Confidential Consultation.
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- Vehicle Code 23152(b): Defined – It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle., California Law [↩]
- People v. Schoonover (1970) 5 Cal.App.3d 101, 105-107 [↩]
- Vehicle Code 23152(g) -Defined: It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle., California Law [↩]
- Baker v. Gourley (2002) 120 Cal. Rtpr. 2d 348, 98 Cal.App.4th 1263 [↩]
- People v. Schreiber (1975) 45 Cal.App.3d 917, 922; People v. Milham (1984) 159 Cal.App.3d 487, 503-505 [↩]
- People v. Sudduth (1966) 65 Cal.2d 543, 547 [↩]