Articles Posted in Alcohol & Drug Related Offenses

weedIt’s common knowledge that driving under the influence of drugs is illegal in California. However, determining exactly what constitutes “driving under the influence of drugs” may come as a surprise. Vehicle Code § 23152(f) is the law that makes driving under the influence of drugs illegal. The law is about as clearly written as it can be: “It is unlawful for a person who is under the influence of any drug to drive a vehicle.”

While the law is clear in its wording, it still leaves a lot of questions. Below are some of the most common questions about charges related to driving under the influence of drugs.

Is It Illegal to Drive Under the Influence of All Drugs? Or Just Illegal Drugs?

Driving under the influence of drugs or alcohol is against the law in California. While most people are aware of the laws against drunk driving, few understand how complex this area of law is. The vast majority of the time, California DUI cases are not as straightforward as they may seem. One of the most misunderstood aspects of California DUI law is the operation element.Man-with-Cop-Behind-300x300

Before a judge or jury can find you guilty of a DUI crime, the government must first prove beyond a reasonable doubt that you were “driving” the vehicle. This is referred to as the operation element. In most states, prosecutors can meet the operation element of a DUI by showing that the defendant exercised physical control over the vehicle. However, in California, the law is slightly more favorable to defendants. To be found guilty of a California DUI, the prosecution must prove that you intentionally caused the vehicle to move by exercising physical control over it. Thus, if the vehicle didn’t move, you are not guilty of DUI.

That said, when referring to “movement,” any movement of the vehicle, however slight, qualifies as driving. Additionally, police officers can rely on circumstantial evidence to illustrate that a car had moved, even if they didn’t witness the car moving. For example, say that police officers respond to a call for a single-vehicle traffic accident. When the police arrive, they find a car wrapped around a utility pole. The driver is the only person inside the car, and there is a half-full bottle of whiskey on the driver’s side floorboard. In this situation, police officers would almost certainly arrest the driver for DUI, even though they didn’t observe the car moving. In doing so, they would rely on the following:

  • There was only one person in the car; and
  • The car had been in an accident.

In this situation, the circumstantial evidence suggests that the person found in the driver’s seat intentionally caused the vehicle to move by exercising physical control over the vehicle. While there is the possibility that someone switched seats with the driver, that is a defense that must be raised at trial. Continue reading ›

While any California DUI offense can have a serious impact on a person’s life, those DUI cases that involve an accident with injury are especially serious. Anyone facing such a violation must make sure to understand what they are facing, to better defend against the allegations. California Vehicle Code section 23153 provides that it is illegal to drive a car while engaging in any other type of conduct that is forbidden by law. This includes driving under the influence of drugs or alcohol.

After a California DUI accident, the prosecution will likely charge several offenses. Aside from a traditional DUI, a motorist may also face charges under section 23153. To prove a violation of section 23153, the prosecution must show:

  1. The driver violated the state’s DUI laws;
  2. While under the influence, you also violated another traffic law, or otherwise acted in a negligent manner; and
  3. The driver’s actions resulted in another’s injury.

To find someone in violation of the California DUI laws, the prosecution must establish that a driver:

  • Had a blood-alcohol (BAC) content of .08 or more;
  • Was otherwise under the influence of alcohol (even with a BAC of less than .08);
  • Was under the influence of drugs; or
  • Was under the influence of both drugs and alcohol.

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In a recent California appellate decision, a defendant appealed a judgment entered after a jury trial in which he was convicted of a DUI under Vehicle Code section 23152 and DUI with a blood alcohol content (BAC) of .08 or greater. The lower court found the defendant had been convicted of three prior DUI offenses and determined to be true the allegations for enhancement purposes that the defendant drove under the influence with a BAC of .08 or greater within 10 years of 3 prior DUI convictions under Section 23550. The lower court put in place a three year jail sentence.

The defendant claimed his identity was not established by certified minute orders presented as proof of prior convictions and therefore the lower court’s findings about his prior convictions were not bolstered by substantial proof. The appellate court disagreed.

The case arose when the police pulled over the defendant on I-110 after he was seen weaving and almost hitting another car. The officer saw the glossiness of the defendant’s eyes and observed he was slurring his words. He asked for help from the California Highway Patrol in connection with a DUI. The officer came to the scene and immediately saw the defendant showed signs and symptoms of intoxication such as slurred speech and red and watery eyes. The defendant claimed this was the result of one margarita. However, field sobriety tests showed he was impaired because of alcohol and his BAC was .187-.179.

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The California Criminal Jury Instruction N. 875 provides that to prove a defendant is guilty of assault with a deadly weapon other than a firearm, the prosecutor needs to prove; (1) the defendant acted with a deadly weapon besides a firearm that due to its nature would directly, probably apply force to someone, (2) the defendant’s actions were willful, (3) when the defendant acted, she was aware of facts that would cause a reasonable person to realize the nature of her act was such it would directly, probably cause force to be applied to someone, and (4) when the defendant acted, she had the ability to apply force with a deadly weapon other than a firearm to someone. A defendant’s awareness of facts that would trigger her realization that her act would probably and directly result in application of force can be affected by prior California DUI convictions, warnings from the court, and a prior court order that she install an ignition interlock device on her car.

In a California appellate decision, a jury convicted the defendant of two counts of assault with a deadly weapon. The defendant was drunk on Memorial Day weekend when she drove a car through the fence and into her neighbor’s backyard during a get-together. The car jumped onto the porch, which was around 15-17 feet from the fence, before it temporarily stopped with wheels spinning in the gravel and then crashed into the master bedroom wall. The neighbor’s friend was almost hit and so was the neighbor’s eight-year-old son.

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Typically, when you are sentenced, and your sentence includes probation, one of the things you are ordered to do is not violate the law. If you are arrested, the arrest itself is not a probation violation. However, what ends up happening, is you will have a new open case and the probation violation trailing behind it, waiting to see what happens on your new case.handcuffs

If you plead guilty to the new charge or are found guilty after a trial, the judge will then address the probation violation in a probation violation hearing. Typically that is done in front of the sentencing judge who put you on probation on the first case. However, the judge on your new case, if s/he has jurisdiction over the first matter, may address probation with the new case, in what is often called packaging or bundling both together.

The probation violation hearing has a lower standard of proof, meaning a judge only has to find that you violated the terms of probation “by a preponderance of the evidence” not “beyond a reasonable doubt” as required in criminal cases.

At the hearing, both the prosecutor and the probationer will be able to present evidence. If the judge finds that it is more likely than not that the probation terms were violated, Continue reading ›

Driving under the influence of drugs, or DUID, is essentially the same as a DUI with alcohol. The code section reads: “It is unlawful for a person who is under the influence of any drug to drive a vehicle. “

pillsIn essence, the prosecutor has to prove that the defendant drove a vehicle, and when s/he drove, s/he was under the influence of a drug. The drug can be an illegal substance, a prescribed medication or even an over-the-counter medicine that could affect the nervous system, brain, or muscles of a person.

Under the influence” is the hardest element for the government to prove. According to the California Jury Instructions (2110), “A person is under the influence if, as a result of…taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.”

Unlike drunk driving cases involving alcohol, Continue reading ›

photo.200San Diego neighborhoods, including Hillcrest, North Park, South Park, Golden Hills, Mission Hills, Little Italy, and Downtown, have new DecoBike stations.  In fact, at least 80 rental stations have been installed, with a total of 180 planned.  Future expansion is supposed to include our beach communities.

As a DUI defense attorney, I see a possible issue with these bike rentals.  Although Mothers Against Drunk Driving, aka MADD, propaganda has brainwashed us all since grade school to believe if you drink an alcoholic beverage and drive a vehicle, you should be prosecuted for drunk driving, many people do not know it is also a crime in California to bike or cycle while under the influence, (BUI or CUI respectively).

If the bicycle is self-propelled, you cannot be charged under the standard driving under the influence statues.  However, you can be cited under California Vehicle Code Section 21200.5, which states, Continue reading ›

mj.jpgAssembly Bill 2500 was introduced in February 2014, by Democratic Assembly Member Jim Frazier of Oakland. It was supported by the Association of Highway Patrolmen, the California Council on Alcohol Problems, the California Police Chiefs Association, the California State Sheriffs’ Association, among others. The bill was opposed by the ACLU, American for Safe Access, California Attorneys for Criminal Justice, California DUI Lawyers Association, California NORML, Crusaders for Patients Rights, Drug Policy Alliance, among others. The original text of the bill sought to impose a “zero tolerance policy” but the bill was amended to a “per se” standard.

Under the proposed law, drivers who have even a trace amount, (“2 nanograms, or more, per milliliter of whole blood”), of Delta-9-tetrahydrocannabinol, or THC, in their blood regardless of whether the person was impaired, could be charged with drugged driving. (Note, this bill also addressed drugs other than THC, providing a level of detectable metabolite that has to be present for the driver to be impaired; however, we are only going to discuss marijuana in this blog).

There is a huge problem with this standard: There has not been any studies proving a correlation of a certain level of THC in the blood and impaired driving. There simply is no science to back up the 2 nanogram standard and impairment. The result of such a law would criminalize non-impaired drivers! This is unacceptable and the California Assembly Committee on Public Safety correctly rejected the amended legislation.

Before January 1st, 2014, California law enforcement agencies were using California Vehicle Code (VC) Sections 23152(a) and (b) to prosecute cases involving alcohol, drugs, or a combination of alcohol and drugs.

VC 23152(a) stated, “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.” VC 23152(b) read, “It is unlawful for any person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

As of January 1st, 2014, the State of California added two more driving under the influence code sections, 23152(e) and 23152(f), thus separating out the alcohol and drug cases.

VC 23152(a) has been updated to read, “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” Section 23152(b) has been changed to, “It is unlawful for a person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

The new VC 23152(e) provides, “It is unlawful for any person who is under the influence of any drug to drive a vehicle.” And, under VC Section 23152(f), “It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.”

After the first quarter of the year, it is unclear how the court will handle the new version of this vehicle code section. Still, the 2014 California Jury Instructions uses only the (a) and (b) sections as they were used before, (see CALCRIM No. 2110 and 2111).

As for the administrative portion of a drunk driving matter, the DMV Driver Safety Office does not address drug impairment at the APS Hearing. The hearing only focuses on alcohol and BAC. However, you can speculate that with the push for more legislation on DUI’s, such as the proposed AB 2500, drug DUI enforcement and penalties may become stricter in the future.

If you have been arrested for driving under the influence due to alcohol, drugs, or a combination of alcohol and drugs, you owe it to yourself to seek help from a criminal defense attorney who exclusively deals with DUI matters.

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