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Drug DUI

Drugs and law. Judge gavel and colorful

There are two laws that involved driving under the influence of drugs in California.

California vehicle code 23152(f) makes it a crime to drive under the influence of a drug.  California vehicle code 23152(g) makes it a crime to drive under the combined influence of alcohol and rugs. In most cases, these will be charged as a misdemeanor. 

In this article we will take a look at both of these crimes, how the prosecution will prove the case, and some of the available defenses.

What must the prosecutor show in order to find me guilty of DUI Drug per VC 23152(f)?

In order to be found guilty of driving under the influence of a drug, the prosecution must show that:

  1. You drove a vehicle; and

  2. When you drove, you were under the influence of a drug.

Element 1

In most cases the prosecution will be able to prove that you drove a vehicle because the arresting officer will have seen you driving the vehicle and will have pulled you over during a traffic stop. However, this is not required. The prosecution can use circumstantial evidence to prove that you were driving a vehicle. This may be witness statements, your own statements, or the officer's observations.

​For example: Say an officer arrives on scene to an accident, two people are claimed to have been in the car. Both are intoxicated. One individual is 5’3 and the other is 6’4. Both claim that they were not driving the vehicle at the time of the accident. However, the officer looks around and notices that the driver seat is pushed forward up to the steering wheel and the mirrors are all set to a person of a smaller size. This is circumstantial evidence that the shorter person was the one driving the vehicle.

Element 2

California defines a drug as a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.

In other words, if the drug impairs you nervous system, brain, or muscles that make it so you cannot operate a vehicle the same way a person who has not taken the drug or medication, you may be charged. 

*It is not a defense that the defendant was legally entitled to use the drug."

What should be noted about this definition for a drug is that it encompasses a variety of substances including, legal and illegal drugs such as heroin, marijuana, prescription medications, and even over the counter medications.

To prove this element, the prosecution is going to rely on two critical witnesses: 1) A drug recognition expert and 2) the criminalist.

Drug Recognition Expert

A drug recognition expert, also known as a DRE, is a police officer that has specialized training to help identify when a person is under the influence of drugs.   The DRE officer is going to put the driver through a 12-step standardized process in order to determine if they are impaired and whether the impairment is related to drugs or a medical condition.

12 Step DRE Evaluation

The Following is the twelve steps for the DRE Evaluation. A DRE Evaluation should be performed in a well-lit and controlled area, often performed at a police station.


1. Breath Alcohol Test


Typically, an officer will have already completed a DUI evaluation as it relates to alcohol. Based upon those results, the officer may believe that the driver is under the influence, but the DUI alcohol results, such as the breath test, shows a lack of alcohol. The officer will then call for a DRE.

2. Interview of Arresting Officer

The DRE should arrive on scene and begin by reviewing the blood alcohol results and discussing the facts related to the stop and DUI alcohol investigation with the arresting officer.  This should include a review of the prior administered field sobriety tests.

3. Preliminary Examination and First Pulse Evaluation


The DRE will then conduct a preliminary examination to ascertain whether the driver is suffering from an injury or other condition.  The DRE will ask the driver a series of standard questions relating to the driver’s health, ingestion of food and rings, alcohol, and drugs, including prescription medications.  While talking to the driver, the DRE will be watching and observing the driver’s attitude, coordination, breathing, speech, and facial features.  The DRE will look at the driver’s pupils for equal size and whether the eyes can follow a moving stimulus or track equally.  The DRE will then take the driver’s pulse.


4. Eye Examination


The DRE will administer the horizontal gaze nystagmus (HGN) to the driver, as well as the vertical gaze nystagmus (VGN).


5. Divided Attention Tests


The DRE will administer four additional tests: the modified Romberg balance test, the walk and turn, the one leg stand, and the finger to nose test.


6. Vital Signs and Second Pulse

The DRE will take the driver’s pulse for a second time as well as check the driver’s blood pressure and temperature.


7. Lighting Examination


Lighting examination, also known as dark room examination, requires the DRE to estimate the driver’s pupil size in three different lighting conditions with a pupillometer. The device helps the DRE to determine whether the driver’s pupils are dilated, normal, or constricted.


8. Muscle Tone Examination


The DRE will examine the muscle tone of the driver, looking for whether the driver’s muscles are rigid or very loose and flaccid. Depending upon the consumed substance, the driver’s muscles may provide a clue as to the nature of the substance or drug that has been consumed.


9. Injection and Third Pulse


The DRE will examine the driver for indications of injection sites which may reveal the type of drug the driver has consumed. The DRE will also take a third pulse check for the final time.


10. Driver Statements


The DRE will question the driver about drug use including their history of drug use, last time used, and whether they’ve consumed any before driving the vehicle.


11. DRE Findings


The DRE will form an opinion based upon a review of the total evaluation. If the DRE determines the driver is impaired, the DRE will indicate the type or category of drugs that may be contributing to the impairment.


12. Toxicological Examination


If placed under arrest, the DRE or arresting officer will transport the driver for a blood draw. 


The criminalist will be responsible for testifying as to the results of the driver’s blood test.  After the blood is drawn, the criminalist will perform a toxicology screening of the blood that indicates the presence of drugs. A quantitative analysis will indicate the amount of the drugs that were detected in the toxicology screening.

Do I have to participate in a DRE?

A driver does not have to answer the DRE’s questions or take any field sobriety tests. The driver may simply decline to participate in the tests.

What if there is no DRE?

While most larger agencies have a DRE on staff, they are not necessarily always on each shift.  Smaller agencies may not have a single officer trained as a DRE on the force, or there may only be a single officer that works a specific shift.  If no DRE was performed, then Drug DUIs become increasingly difficult to prove. 

What must the prosecutor show in order to find me guilty of DUI Drug per VC 23152(g)?

In order to be found guilty of driving under the combined influence of alcohol and a drug, the prosecution must show that:

  1. You drove a vehicle; and

  2. When you drove, you were under the combined influence of alcohol and a drug.

How will the prosecution prove 23152(g)?

In order to prove this crime, the prosecution will have to use the same process to show that you are guilty of the “A” count as well as a DUI Drug.  The prosecution will seek to establish that you have consumed both alcohol and are under the influence of a drug at the same time.  The prosecution will do this through the arresting officer’s testimony, as well as the DRE evaluation and the criminalist.  Of important note, there is no requirement that you be a specific limit for a 23152(g) DUI, such as .08, as is required by the “B” count. The prosecution will establish that you had both alcohol and drugs in your system, and then seek to argue that under this combination you were unable to operate the vehicle the way a sober person would.

Defenses to DUI Drug

One defense to DUI Drug charge is that the DRE was not conducted properly.  The DRE Evaluation is supposed to be standardized because, as the California Highway Patrol puts it, “it is conducted the same way, by every drug recognition expert, for every suspect whenever possible.” Having prosecuted Drug DUIs, Kevin knows that this is rarely true and that often steps are rushed, or all out skipped.  As such, the DRE evaluation can be challenged as being flawed, which may conclude that there was no probable cause for the actual arrest and any blood results should be suppressed.

Other defenses to Drug DUI can include attacking the validity of the blood test and the results, and whether the lab followed California’s regulation regarding procedures for collecting and analyzing blood samples.

Another defense to a Drug DUI has to do with the validity of the results based upon detection time for drugs in the system.  Many drugs may be detected in the blood system for days after use.  For instance, amphetamines and opiates may be in the blood stream for up to three days after use, even though the user is no longer under the effect of the drug.

Penalties for DUI Drug

Since most Drug DUIs are charged as a misdemeanor, if you are convicted of a first DUI you can expect to face summary probation, up to six months in county jail, and fines between $390-$1,000.  The court will also order you to attend a DUI drug related course that lasts between 3 to 9 months.   

Dedicated DUI Attorney

Kevin Ballard is a dedicated DUI attorney based in Fairfield who understands how to effectively defend those charged with DUIs. Kevin is one of the few attorneys who is both a former prosecutor and trained as a police officer. As such, Kevin knows first hand how DUIs are handled from the initial traffic stop through prosecution and appeal. Let the Law Office of Kevin L. Ballard help you today defend your rights and protect your liberty.

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