Driving Under the Influence of Drugs

When we hear the term DUI, we usually think of drunk driving, but D.U.I. is an acronym for “driving under the influence” and that includes the influence of drugs. Even legal drugs can land you a DUI charge. You should consult an Orange County DUID lawyer if you are fighting this type of charge.

A driving under the influence of drugs (DUID) arrest is very similar to an arrest for driving under the influence of alcohol: A cop initiates a reasonable suspicion stop on your vehicle ¬– it could be for a traffic violation or because the cop observes your vehicle proceeding in a suspicious manner such as weaving or for any other reason that falls under reasonable suspicion. Or you could be involved in a traffic accident, even one that is not your fault, and the responding cop suspects you are under the influence.

Once the police make contact with you as the driver of a vehicle and suspect that you might be driving under the influence, they will usually perform field sobriety tests (FSTs). FSTs will be performed even when the officer doesn’t suspect the driver has been drinking (e.g., when there Is no smell of alcohol on the person’s breath and no other signs of alcohol consumption) ostensibly as a screening tool to determine if the driver is under the influence of anything that may impair his or her driving. A driver is not required to submit to FSTs but the officer will never tell the driver that. In reality, FSTs are usually just a pretext to establish reasonable suspicion that the driver is under the influence because very few people are agile and balanced enough to pass FSTs with flying colors, even if they are not under the influence of anything.

Here's where a stop for suspicion of driving under the influence of drugs differs from a stop for the suspicion of driving under the influence of alcohol: When a driver is suspect of being under the influence of alcohol, the suspicion can be readily confirmed by a PAS (breathalyzer). (While a driver can decline being tested by a handheld breathalyzer without any repercussion, he or she will be promptly taken to the police station for a breathalyzer test, which if declined is considered a “refusal,” which carries additional punishments.) But with a suspicion of “drugged driving” the breathalyzer is of no use. In that case, the driver’s blood will be drawn at the police station or at a clinic and analyzed for drugs that may have an effect on a person’s ability to drive. In most cases, the police cannot force a driver to submit to a blood draw as the Supreme Court found that to be unconstitutional, but if the driver refuses to submit to the blood draw he or she will likely face the unpleasant consequences of a “refusal.”

If the blood analysis returns with any amount of a drug showing in the person’s system and that drug (or drugs) can affect a person’s ability to drive, he or she can and probably will be charged with driving under the influence under Vehicle Code section 23152(f) which states: “It is unlawful for a person who is under the influence of any drug to drive a vehicle.” Also, note that the vehicle code makes it illegal to drive under the influence of any alcoholic beverage and drug under this section at subdivision (g). It is important to consult a DUID lawyer in Orange County if you are in this situation.

So, what does that mean? Can someone be arrested for driving under the influence of aspirin?

No, a “drug” under this section means “any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, [his] [her] ability to drive a vehicle in the manner that an ordinarily prudent and cautious person, in full possession of [his] [her] faculties, using reasonable care, would drive a similar vehicle under like conditions.]” But this can be legal drugs as well as illegal drugs. Many people believe that just because the drug in their system is legal and prescribed, they cannot be arrested for DUID. Wrong! Many commonly prescribed, and even over the counter drugs, affect our ability to drive and are fair game under this statute. Even a substance as seemingly innocuous as Benadryl could affect one’s driving ability. After all, the Benadryl package warns of exactly that. However, a DUID attorney can help Orange County drivers protect their rights under the law.

Marijuana, while now legal in California, is also a drug that can affect a person’s driving ability and therefore someone driving under the influence of marijuana can also be arrested for DUID. Whether a person is under the influence of marijuana at the time he or she was driving is difficult to prove due to the way marijuana cycles through a person’s system. As with almost any DUID charge (when the drug is legal) and especially in a DUID charge for driving under the influence of marijuana, the prosecution will introduce other evidence of the person’s driving and/or conduct as observed by the arresting officer as additional proof that the person was DUID. The administrative and court processes for DUID are virtually the same as that for a driving under the influence of alcohol arrest. And the same penalties apply if convicted. Unlike driving under the influence of alcohol where the law sets a specific threshold (0.08%) above which someone is considered under the influence, there are no per se amounts of drugs that must be in a person’s system before he or she is DUID. This can work in the driver’s favor … or not. On the one hand, it can be more difficult to prove that the drug in the person’s system actually affected his or her driving; on the other hand, since any amount of the drug can be used to prosecute the case, it becomes somewhat of a subjective matter and the courts and DMV tend to side with the police observations.

As with an arrest for driving under the influence of alcohol, an arrest for driving under the influence of drugs requires immediate attention. You have only ten days to request an APS hearing. Orange County DUID attorney William Weinberg has been defending DUI charges, including many for driving under the influence of drugs, for almost 30 years. You may contact him at his Irvine office at (949) 474-8008 or by emailing him at bill@williamweinberg.com for a free consultation.