California law prohibits any person who is under the influence of drugs to operate a vehicle as outlined in the California Vehicle Code 23152 (f). Also, Vehicle Code 23152 (g) states that it is illegal for an individual under the influence of both alcohol and drugs to operate a vehicle. Drug refers to any substance or a mixture of substances excluding alcohol that may influence the brain, muscles, or the nervous system of a person. The influence of drugs may affect a person's ability to operate a motor vehicle as an ordinary person would in similar circumstances. The Orange County DUI Defense Attorney Law Firm can represent you if you are facing DUID charges.

Definition of DUID Under California Law

DUID involves driving under the influence of drugs. The definition of a drug has a broad scope and may include prohibited drugs such as cocaine, heroin, and methamphetamine. A drug also includes legal drugs such as marijuana. You may also be under the influence of drugs such as prescription medication and other over the counter medicines such as cold medications and antihistamines. 

For most DUID cases in California, the drugs commonly involved include methamphetamine, marijuana, Ambien, and prescription drugs, opiates, such as Oxycontin and Vicodin. Even if the drug is necessary for your physical health and wellbeing, you can still face driving under the influence charges as long as the drug has an effect on the brain, nervous system, or muscles.

Is There a Minimum Allowable Limit for Drugs?

In the case of DUI, you are intoxicated if you record a blood alcohol concentration of .08% and above. For DUID cases, there is no set minimum allowable level of intoxication. Experts have never concluded on the content of drugs in a person's bloodstream that makes him/her impaired to operate a vehicle. The National Highway Traffic Safety Administration (NHTSA) points out that currently, it is hard to equate specific drug concentration levels with effects on driver capability. 

Therefore, the law generally outlines that a person should not operate a vehicle while intoxicated with drugs or while intoxicated with both alcohol and drugs. The law also prohibits a person addicted to drugs from operating a vehicle unless the person is undergoing treatment for the addiction under a recognized and approved treatment program.

DUID Arrest

A DUID arrest starts with a traffic stop; the law enforcement officer must have probable cause for stopping a vehicle. After the stop, if the officer suspects that the driver may be under the influence of drugs, he may conduct further investigations that may include:

  • Interrogating the driver about the driver's usage of drugs or alcohol

  • Conducting preliminary alcohol screening (PAS) test- The officer may request the driver to undertake the PAS test usually conducted on a handheld Breathalyzer machine.

  • Requesting the driver to perform one or several field sobriety tests (FSTs)

  • Looking for some visible signs of intoxication that may range from confusion, dilated pupils, loss of balance, and drowsiness among others

  • Inspecting the suspect's vehicle to trace any evidence of the presence of drugs or alcohol

If an officer establishes that the driver's blood alcohol concentration (BAC) is below .08%, but the driver still appears intoxicated, the officer may suspect drug usage. The officer may request for the services of another law enforcement officer with specialized training, often known as a DRE (drug recognition expert). The expert may come to the site and evaluate the driver. To determine if there is the presence of drugs in the driver's system, the officer may request a mouth swab test.

A mouth swab test can help detect certain types of drugs, including cocaine and marijuana. When conducting a swab test, the officer gives the driver a small swab, and the driver rubs it on the inner side of his mouth, letting it stay therein for a few seconds. The officers place the swab in a test machine and add a special solution. The test machines release the results of drug presence in less than ten minutes.

Law enforcement officers undergo specialized training to help them recognize a person intoxicated with narcotics. The drug recognition expert training began in the Los Angeles Police Department. Currently, the California Highway Patrol runs the DRE program. Most law enforcement bodies across the country use the DRE program when evaluating DUID cases. 

How a DRE Officers Conduct Investigations

After arriving at the scene of impaired driving examination, a drug recognition expert follows various procedures to determine if the driver is intoxicated. In the case of intoxication, the DRE will determine the specific drugs a driver may have used. The investigation procedures include:

Ruling out Alcohol Impairment- After arriving at the scene of the investigation, the drug recognition experts starts by ruling out the presence of alcohol in the driver's BAC results. The absence of alcohol is a clear indication that the driver may be intoxicated with drugs. 

Interrogating the Driver- the DRE may also examine the driver to find out if the driver has indulged in drug usage either prescription, over the counter drugs, or other legal or illegal drugs. While asking the driver about his/her drug usage, the drug recognition officer strictly observes the driver in order to detect signs of impairment.   

Physical Examination- The drug recognition experts conduct a physical examination of the driver. Physical examination may include determining the pulse rate of the driver, evaluating the driver's pupils, checking for the presence of drugs in the driver's nostrils or mouth, checking the tone of the muscles as drugs often affect muscles making them rigid. The DRE may also look out for possible injection marks as these may serve as proof that the driver had injected himself/herself with drugs.

Eye Tracking Exam- After consuming drugs, a driver's eyes may become involuntary jerk from side to side. When examining a driver, the DRE officer may look out for horizontal gaze nystagmus (HGN), which is a clear indication of drug usage.

The HGN test is a standardized field sobriety test. The law enforcement officer makes a stimulus to the right and the left and instructs the driver to follow the stimulus with his/her eyes. While conducting the test, the officer checks to see if the driver turns his/her eyes involuntary. According to the NTHSA, the HGN test is 77percent reliable in ascertaining whether a driver is under the influence. The NTHSA has put in place some guidelines for law enforcement officers to follow while conducting this test. It is common for some law enforcement officers to misuse the HGN test by failing to conduct it correctly and as a resulting arrest of innocent drivers for intoxication.   

Re-administer Field Sobriety Tests –There are various types of field sobriety tests, which a drug recognition expert may administer to determine if a driver has used drugs. The standard field sobriety tests include the Romberg balance test, one-leg stand test, finger to nose test, and walk and turn test. These tests are discussed below:

  • When conducting a Romberg balance test, for instance, the officer requests the driver to stand while keeping his/her feet together and then ask the driver to close his/her eyes and slightly tilt his/her head backward. The driver may be required to maintain this position for thirty seconds and then open his/her eyes after estimating that thirty minutes are gone. When conducting this test, the officers are keen to observe the direction in which the suspect tilts his/her head, the ability of the suspect to estimate passage of thirty seconds, muscle tone of the suspect, tremors of the suspect's feet or body, and the ability of the suspect to follow the given instructions. These observations will help the DRE determine if the suspect is under the influence.

  • The one-leg test is among the three commonly used and standardized field sobriety tests. The test divides the suspect's attention between mental and physical tasks. The suspect is required to follow instructions and at the same time, perform some physical activities as per the instructions.

  • The finger to nose test may come in handy when determining if a driver is under the influence of drugs. During the test, a driver is required to slightly tilt his/her head backward and then touch the tip of his/her nose with the index finger with eyes closed. A driver under the influence of drugs may find it hard to perform the task.

  • The “walk and turn” test is among the standardized field sobriety tests commonly employed by law enforcement officers. The test also goes by other names such as the DUI straight-line test, nine-step test, DUI walk the line test, or nine-step walk turn. In administering the test, a suspect is required to walk on a straight-line heel to toe, and after taking nine steps; the victim then turns and takes the exact steps in the opposite direction. Some indications of impairment during the walk and turn test include the driver failing to touch heel to toe, stepping off the straight line, using arms for support and balance, making improper turns, and stopping before taking nine steps.

Request for a Blood or Urine Test- The expert may also request the driver under investigation to submit a blood test or a urine test. Some drugs may be hard to detect unless a blood test is carried out. A urine test may also help expose the presence of a specified category of drugs.  

Unlike typical DUI investigations that take place on the roadside, the DRE conducts his/her investigation in a well-lit and controlled area away from the scene of the arrest. The controlled area may be a police station or any other suitable place. After conducting a thorough investigation, the DRE concludes as to whether the driver's impairment is resulting from drug usage, and if so, the type of drug the driver might have consumed. 

The Driver's Rights During Investigation

A driver may choose to exercise his rights according to the Fifth Amendment right against self-incrimination. The driver does not have to comply with undergoing sobriety tests, and neither does he/she have to answer to all the questions posed by the drug recognition expert.  There is no punishment for refusing to undertake a chemical test until the driver is placed under custody. The driver may only face the consequences for refusing to undergo the test if he/she has a prior DUI case record or if the driver is underage.  Underage drivers are bound by underage DUI laws and zero-tolerance laws. 

What to Expect During the Arrest

After determining a probable cause for DUID arrest, the law enforcement officer may take the driver into custody. During the arrest, the officer does not have to read out the driver's Miranda rights as most people expect. Also known as a Miranda warning, Miranda rights refer to the information the police must give to the suspect before interrogating him or her after an arrest. When issuing a Miranda warning, the police start by stating the driver's right to remain silent.

The police only have to read the Miranda rights after taking a driver into custody ready for investigations.  A Miranda warning is not necessary when the police are in the course of conducting field investigations.

During questioning, the police may pose questions that may trigger incriminating answers from the driver. For instance, the police may seek to know the specific drugs the driver may have used before operating a vehicle. The police may also seek to know the exact quantities of the drug a driver may have consumed. If you are arrested for DUID, you should be careful when answering the questions posed by the police as most of them may be incriminating. It would be wise to remain silent until you secure the presence of an attorney.

Blood Tests for DUID

Unlike regular DUI cases that mainly call for less invasive breath tests,  a DUID case may call for a blood test, albeit invasive, to determine the presence and the level of drugs in a suspect's system. When conducting a DUID blood test, blood samples are submitted for a toxicology test. The screen provides a list of all drugs present in a suspect's body. However, the toxicology screen does not give results for the concentration of drugs present in a suspect's system. The screen only reveals whether a person tests positive or negative for a certain drug. For instance, a screen test may reveal if a driver tests positive for marijuana or cocaine but does not give the concentration of the drugs. 

However, the concentration of the drug is not necessary, as DUID cases do not have a minimum a legal drug concentration limit like in the case of alcohol DUI. Therefore, as long as you test positive for a drug, you will be liable for driving under the influence of drugs.  In most cases of DUID, prosecutors pay more attention to the observation made by the law enforcement officer and the evidence gathered by the drug recognition officer.

A DUID Trial

A DUID trial has three main steps. The first step is the arresting officer's testimony, the second step in the drug recognition expert's testimony, and the third step is the presentation of the blood tests results:

  1. Arresting Officer's Testimony

    The arresting officer will explain why he/she suspected that you were driving under the influence of drugs. For example, the officer may state that you were operating the vehicle in a disorderly manner and not paying attention to traffic rules. The officer may further state that after making a traffic stop, they noticed some signs of intoxication such as poor coordination or physical signs such as red or watery eyes.

    The arresting officer may also state that after administering the field sobriety tests, it was clear that you were under the influence of drugs as you could not follow instructions. If alcohol could not be detected through a PAS test, the arresting officer may state that after conducting the PAS breath tests, the results came out negative of the presence of alcohol. The officer may further assert that the absence of alcohol could only be an indication that the driver was under the influence of some other drugs. The officer may also point out that as the driver was driving; he/she did not exhibit caution as a sober person would do under similar conditions.

  2. The DRE's Testimony

    The testimony of the drug recognition expert is the most reliable evidence in DUID cases. To start with, DREs are used to testifying as many law enforcement officers hire their services regularly. Therefore, a DRE's testimony will come out as very professional and persuasive.

    In his/her testimony, the DRE may start by outlining his/her qualifications to handle DUID cases. The DRE will further confirm that your impairment was not because of alcohol but as a result of drugs or a combination of both alcohol and drugs. The expert will further point out that your impairment was not because of illness but due to the presence of drugs in your body. The DRE may state the specific drugs you had consumed before operating the vehicle. Such concrete evidence would come out as very strong.

    If there was no involvement of a DRE in your DUID case, it might be hard for the prosecution to prove allegations against you, and this may give you a good basis for staging your defense. However, it is important to note that some arresting officers may possess DRE training.

  3. DUID Blood Test Results

    After presenting the arresting officer's testimony and the DRE's testimony, the prosecutor will then present the findings of the blood test in court. An expert witness may present the results of the blood tests to indicate that there was some presence of drugs in your system.

Common Defenses Against a DUID Charge

There are specific defenses, which involve offenses of driving under the influence of drugs, and they include:

Presence of Drugs Does Not Imply Impairment

Simply because you tested positive for a certain drug does not mean you are under the influence of the drug.  There is no proven correlation between the presence of drugs in a person's system and intoxication. Drugs have varying effects on people. Some people may be impaired after using a small percentage of drugs. Other people may have built resistance over time, and drugs may only have a small effect on them.

Drugs Have a Longer Detection Window

After using drugs, the content of the drugs will stay in your blood or your urine for a much longer period than the period you will be under the influence. This is the detection window for drugs; a drug may still linger in your system many days after consuming it. For example, the detection window for cocaine ranges between one day and three days. Heroin or Opioids may last in the blood for one to three days, but in urine, they may last for one to four days. The longer detection window means that you may test positive for a drug yet you had used it much earlier and you are no longer high on it. You can base your defense on the fact that at the time of arrest, you were not high on the drug

Conditions with Similar Signs with Drug Usage

Intoxication with drugs may lead to some symptoms such as watery eyes, bloodshot eyes, failure to coordinate, and problems maintaining balance. While facing DUID charges, your attorney may defend you by asserting that the physical signs were because of another condition just as an illness. Other conditions whose symptoms may mimic drug usage include allergies, anxiety, injuries, lack of sleep, and fatigue.

Known Symptoms of Drug Intoxication May Have Other Causes

When conducting field sobriety tests, officers seek obvious signs of drug impairment. The symptoms may include dilated pupils. Involuntary jerking eyes, and poor balance. Even when such obvious signs are available, you can still defend yourself. For instance, jerking of the eye occurs naturally in some people and may not be a sign of impairment. A dilated pupil may be due to the excitement, and poor balance may be due to discomfort, an injury, or an illness. 

Challenge the Chemical Tests Results

Even if the results of a chemical test come out positive, your attorney can still challenge the results in court. The results may be inaccurate if the test equipment was faulty, the blood was wrongfully drawn, and if the blood samples were improperly handled and stored.

Find an Orange County DUI Defense Attorney Near Me

DUID cases come with severe consequences. It is hard to challenge the DUID evidence, especially the evidence provided by a drug recognition expert. At the Orange County DUI Defense Attorney Law Firm, we can fight on your behalf. Call our Orange County DUI Lawyer at 714-740-7866 and speak to one of our attorneys regarding your DUID case. You do not have to face the charges alone.