Drug DUI in California

Los Angeles DUI lawyer Jon Straub

What you should know about Drug DUI in California: The winning approach to handling Drug DUI charges.

Cases involving Drug DUI in California are becoming more frequent with the growing use of drugs: prescription drugs, medicinal marijuana and recreational drugs like marijuana or MDMA.  Prosecutors are having a much easier time charging and convicting Drug DUI drivers because of the changes in the California Vehicle Code DUI section.  Regardless of the changes in the law, Drug DUI cases have many similarities to alcohol related DUI, giving a DUI lawyer a great starting point to begin to build a winning defense.  Additionally, Drug DUI cases are in some ways are easier to fight (primarily due to the lack of forensic expertise to prosecute Drug DUI), giving an experienced DUI lawyer other “avenues of attack” to fight and beat drug dui cases in California.

As a Los Angeles DUI attorney, I see both drug and alcohol DUI cases frequently.  Drug DUI charges are often easier to beat because of the important differences between drug and alcohol DUI, as shown below.

Defenses in California Drug DUI Cases:

Every DUI case involves an arrest and prosecution.  Regardless of whether the case involves drugs or alcohol, a law enforcement officer arrested, booked and had a driver charged with a crime.  Being charged with a crime is no small matter: law enforcement (police, highway patrol officers or sheriffs) have to follow legal procedures in handling every arrest.

Defenses to probable cause, sufficiency of the evidence, required legal admonishments, police procedures, police training, maintenance and calibration of police equipment are all issues that can lead to winning defenses in Drug DUI cases.

Changes in California Law: Drug DUI under CVC 23152.

In 2014, the California legislature changed the Vehicle Code section for DUI (CVC 23152).  Before the changes, prosecutors relied on one section (CVC 23152(a)) to charge drug DUI cases in California.  After the changes, prosecutors were given more sub-sections to charge drug DUI drivers with.  This increases the chance that one of the charges will “stick,” and the driver will be convicted of drug DUI.

Regardless of the changes that have helped prosecutors, the law has not filled in some important gaps that can unravel a drug DUI prosecution.

No Legal Limit: Defending Drug DUI in California by attacking the scientific evidence.

Perhaps the most significant difference between drug and alcohol DUI cases is the fact that alcohol DUI cases have been prosecuted for decades, while drug DUI cases have only recently attracted attention. Because of this, drug DUI in California does not have the same level of scientific research, forensic research and studies that are useful to prosecutors.
Because of the decades of alcohol DUI enforcement, the “law” has developed a “per se” limit that is used in alcohol DUI prosecutions. Any driver that is stopped with a blood alcohol level at or above 0.08% is guilty of alcohol DUI. This level (the 0.08% legal limit) has been studied, analyzed, litigated and entrenched in our legal system. Decades of alcohol DUI prosecutions have led to the courts, the legislature, and the DMV in feeling confident that drivers above 0.08% are guilty of alcohol DUI.

Drug DUI cases are different: There is not decades of research, prosecution, forensic science studies or peer reviewed examination into drug DUI and drug impairment. This is the single most important difference between a drug DUI case and an alcohol DUI case. This difference is what a drug DUI defense lawyer uses to beat a drug DUI case: The prosecution does not have a “legal limit” that can be used to preemptively show impairment.

Even if the case involves testing for the presence of drugs, there is no “legal limit” by which the driver can be prosecuted.  This means the prosecution has to prove impairment by other evidence.  If the defendant’s driving was good, (for example, the defendant was arrested at a DUI checkpoint) the defense can show the driver was not impaired.  Even if the driving was bad, a defense strategy to show the bad driving was caused by something other than drug impairment can be useful in beating drug DUI charges.