The Drugged Driving Problem in California
California law specifically states that it is illegal to operate a motor vehicle with a BAC that exceeds .08%. Law enforcement uses blood testing, breath testing, and field sobriety testing to determine the driver’s BAC level. However, drug tests are less precise. In fact, law enforcement has not developed an absolute method to determine a driver’s level of drug impairment. Unlike alcohol, drugs remain in the user’s bloodstream long after the effects wear off. For example, marijuana is detectable in the bloodstream for two weeks after use, while the effects of marijuana only last for several hours. Thus, blood testing could indicate drug use when the driver did not drive under the influence.
Some states adopted “zero tolerance” drug laws to fix this problem. In California, drugged driving is a gray area – even though the California Office of Traffic Safety indicated that drugged driving could be more common than driving under the influence of alcohol. According to a report issued in January, 2013, some counties in California spend hundreds of thousands of dollars on drugged driving prosecution and prevention every year. The report also indicated that about 90% of California drug-only DUIs ended with a criminal conviction in 2012; a surprisingly high number considering that the techniques used to measure drug impairment are not as advanced BAC testing.
Drugged Driving Investigation Techniques
Most drug-related DUI cases begin when an officer notices signs of impairment but cannot verify that the driver is drunk. If law enforcement suspects that a driver is under the influence of drugs, a drug recognition expert (DRE) will help police determine whether or not the driver is under the influence of a controlled substance. DREs are law enforcement officers with a special understanding of drug impairment. Once the DRE arrives, he/she will conduct an investigation to decide if the driver is under the influence of a controlled substance.
First, the DRE will verify that the driver is not impaired by alcohol. Then, the DRE will check the driver’s pulse rate and pupils for physical signs of drug or alcohol impairment. This includes a horizontal gaze nystagmus (HGN) sobriety test. The HGN test was developed to identify alcohol impairment, but can show drug impairment as well. The DRE may re-administer the other field sobriety tests as well, such as the “walk and turn,” “finger to nose,” “Romberg balance,” and “one leg stand,” tests.
The DRE will check the driver’s nose and mouth for indications of drug ingestion and check for physical signs of drug injection. Throughout the investigation, the DRE will continue to monitor the driver’s pulse and observe his behavior. Drug impairment investigations are most accurate when law enforcement conducts them in a controlled environment, such as a police station. If the DRE completes the investigation and decides that the driver is impaired, he/she will request a chemical test to identify the drug.
California Drugged Driving Penalties
Drugged driving is usually a misdemeanor offense, but the court may charge it as a felony under certain circumstances. Drugged driving may be charged as a felony if your criminal record reflects three or more DUI convictions, if you were convicted of felony DUI in the past, or the DUI involved an injury.
Your first DUI can result in:
- Five years of probation
- Six months in jail
- A $1,000 fine
- A DUI education program
After your first conviction, successive offenses within ten years will result in heightened penalties. Your second DUI (without injury or aggravating circumstances) can result in up to one year of incarceration, a $1,000 fine, two years of driver’s license suspension, and a DUI educational program. A third offense is punishable by one year in jail, a $1,000 fine, three years of driver’s license suspension, a mandatory ignition interlock device, and a DUI education program. The driver could be labeled a “repeat offender” after a third DUI conviction.
Misdemeanor DUID with Injury
DUI with drugs is a serious crime – especially if the driver injures an innocent person. According to California Vehicle Code § 23153 (a), driving under the influence of drugs qualifies as a “negligent act.” If a driver accidentally harms another person as a result of drug impairment, he/she may be arrested for DUI causing injury. If prosecutors allege that you caused an injury while driving under the influence of a drug, you may be subject to harsh legal consequences.
Misdemeanor DUID with injury is punishable by:
- Three to five years of probation (informal)
- One year in jail (no less than five days)
- A $5,000 fine (no less than $390)
- A court-approved, 30-month drug education program
- Three-year license suspension (no less than one year)
- Restitution to all injured parties
Felony DUID with Injury
Felony DUI is punishable by two, three, or four years in a California state prison. You may serve an additional three to six years in prison for any person who suffered serious bodily injury as a result of the offense. Finally, you may suffer another three consecutive years (no less than one year) for each person who sustained any injury related to the DUI offense. Felony DUI with injury is also punishable by a five-year driver’s license suspension, a court-ordered drug education program, and a $5,000 fine.
Proving DUI with Marijuana
Generally speaking, a marijuana DUI is more difficult to prove than a DUI under the influence of alcohol. While law enforcement has developed methods, such as breathalyzer tests, to determine the level of alcohol in a driver’s system, there is no way to truly measure the level of marijuana in a person’s bloodstream. The active ingredient in marijuana, delta-9-tetrahydrocannabinol (THC), can be traced in a person’s bloodstream for weeks after the individual consumes the drug. However, the effects of marijuana usually last for only a few hours. In other words, law enforcement might assume that you drove under the influence of marijuana when you were actually sober.
How Do Police Prove That You Drove Under the Influence of Marijuana?
Law enforcement may have difficulty demonstrating that you drove under the influence of marijuana. However, common evidence used in marijuana DUI cases includes your driving patterns, field sobriety test results, chemical testing, and your physical appearance.
For example: a law enforcement officer could claim that your driving patterns indicated marijuana impairment. Additionally, an officer could claim that your eyes were red during the DUI investigation and that you failed standardized field sobriety testing. Although his evidence could point to DUI with marijuana, it could also be explained by exhaustion or other variables.
Fighting Allegations of DUI with Marijuana
If you were accused of driving under the influence of marijuana, a skilled Santa Barbara DUI lawyer can stand up for your rights in court. Three common defenses against marijuana DUI include:
- Marijuana does not always impair your ability to operate a vehicle. According to some researchers, marijuana DUIs are the result of popular stereotypes. These stereotypes assume that anyone who is under the influence of marijuana cannot safety drive a car. In reality, marijuana does not always impair a drive’s senses like alcohol. Unlike alcohol, marijuana tends to make drivers more cautions, not reckless. Additionally, drivers who are under the influence of marijuana understand its effects and can compensate while driving.
- Law enforcement cannot tell whether the driver used marijuana. Blood tests are only used to detect marijuana in the driver’s system; they cannot determine when the driver last used marijuana. THC can remain in your system for several weeks after use, even though the effects of marijuana usually wear off in a few hours. In other words, a blood or urine test might indicate drug use long after its effects subsided. Because of this, many drivers face unfair DUI charges associated with marijuana.
- Blood and urine tests cannot determine how much marijuana the driver used. While breath testing can indirectly determine a driver’s blood alcohol concentration (BAC), blood and urine samples how much marijuana the driver used. According to research, a “high” driver will experience the same amount of impairment as someone with a BAC or .04%. This percentage is half of the legal limit. Thus, chemical testing is almost meaningless in a marijuana DUI case because it cannot determine the amount of marijuana used by the driver.
