Drug Related DUI FAQs

Answer: Yes. There’s various charges that can be brought against somebody when it comes to driving under the influence or possession of drugs whether it’s marijuana or something else and it can range from anything as low as an infraction for possession of less than an ounce of marijuana to serious felony charges for possession with the intent to sell or transportation of illegal or controlled substances. So, how much marijuana or drugs that are found in a car can affect what type of charges can be brought, it also can affect how a district attorney or city prosecutor would interpret a case and how zealously or vigorously they would attempt to enforce a DUI that resulted with somebody with drugs in their car.

Answer: A lot of times when somebody is stopped for possibly driving under the influence and drugs are found in the car, the drugs may or may not belong to that particular person and if they are in the car with the person, the law enforcement officers, the police as well as the prosecutors, are going to try to impute or guess that they are the drugs of the driver. But that’s not always true and it is possible to prove that they are not the driver’s drugs.

A lot of times it will come down to the location (if they were near the driver, if they were near the passenger’s area or possibly in the backseat or in the trunk), or how the drugs were stored (whether they were in a bag, a purse, a backpack). You do get issues of ownership as well as legal issues, not just factual issues as far as who owns it, but legal issues as far as what the officers are allowed to look for, the scope of the search, the consent of the search and whether or not there was a search warrant obtained before searching the car. So there are factual and legal issues that come up and whose drugs they were often plays a big role in how a case is resolved in court.

Answer: In California, the legislature, the ones that make the laws, recently divided how DUI charges will be brought against somebody. It used to be that there were two basic DUI charges: one was driving under the influence of alcohol or drugs or a combination of both, and the other was driving with a 0.08 blood alcohol level or above. However, the legislature changed that by subdividing DUI charges. The penalties and consequences may be the same or very similar, but they keep track of the different types of DUIs and they break it down. So there is a code section specifically for driving under the influence, there’s another code section specifically for driving under the influence of alcohol, there’s a code section for driving under the influence of drugs, there’s a separate code section for driving under the influence of alcohol and drugs, there’s a code section for driving above the legal limit of alcohol, as well as code sections for somebody who is addicted to medication or drugs.

So the prosecutors now will specifically allege what type of DUI they are seeking to prosecute and seeking to get a conviction on. If somebody is stopped for having just marijuana, they will be charged with driving under the influence of drugs. If it’s alcohol and drugs, then there will be a different code section and the prosecutors will often list two or three or four different types of DUI charges because they’re not sure which one they’re going to be able to get to stick.

Answer: A lot of times the penalties for drug related DUI are not the same as regular DUI. In the court case, the penalties may be very similar as far as fines and classes; however, the Department of Motor Vehicles handles drug cases differently than alcohol cases. You can see some differences in the types of classes, the length of classes, whether a license gets suspended or not being different with a drug case versus a straight alcohol case. A lot of times it will also come down to the type of drug, although there may be certain minimum and maximum penalties you often see prosecutors being more lenient on the “softer” drugs such as marijuana and heavier on drugs such as heroin.

Answer: Every case is different but the length of a DUI case in Los Angeles County usually stretches somewhere between 2 and 6 months. A lot of courts in Los Angeles County now are putting a lot of pressure on defendants to resolve cases either by settlement, plea bargain or by taking the case to trial within about 3 months or 90 days. So, a lot of high volume courthouses in Los Angeles, such as in Van Nuys or the Metropolitan Courthouse, will try to have cases resolved, settled within 90 days. Other courts you can get more time – 6 months – and sometimes if the case is appropriate, you can get up to a year or sometimes even more. It just depends on the particular facts, the judge and what’s going on in the case.

Answer: The code section on drugs is driving under the influence of drugs. It doesn’t matter for a DUI case whether it’s prescription medication or illegal medication – if you are impaired for purposes of driving, meaning you cannot drive the same or similar as a sober person, then you can be charged and possibly convicted with a DUI. So more and more we’ll see people driving with prescription medication in their system and law enforcement officers interpreting that as impairment, and sometimes it is, but many times it’s not. It may just be nerves or something else that’s causing someone to appear that they may be impaired and if somebody is on prescription medication, they can be convicted of a DUI just as if they were driving under the influence of alcohol or illegal drugs.

Answer: When somebody is tested for driving under the influence and they submit to either a blood or a urine test, those tests can come back positive for drugs even if the drugs are not active in the person’s system at the time. So if somebody takes drugs, maybe smokes some pot a couple of days before, when they get stopped driving, there still can be marijuana in the blood and in the urine and that can come up positive. How long something will stay in the system or the half life of the particular drug is going to vary depending on the drug, the concentration or the potency of the drug as well as the individual person.

So how long something will stay in the system may vary but it is not unusual at all if somebody has smoked marijuana several days before to still see metabolites in the system. But there is a big difference between active metabolites and inactive metabolites and when a particular drug will and will not affect somebody. So if somebody smokes pot two days earlier, although it may still be in the system, it’s not going to affect their ability to drive, and studies on marijuana can show that residual amounts of marijuana can stay in the blood and urine for days if not weeks or possibly even longer.

Answer: If somebody is stopped and arrested for driving under the influence of drugs and they are convicted of driving under the influence of drugs, there are some mandatory programs and unfortunately there’s a lot of political motivation behind DUI cases and DUI drug cases. If someone were just under the influence of a controlled substance and walking down the street or a passenger in a car, they may be able to take diversion programs and earn a dismissal in a particular case. However, if somebody is driving under the influence, they are specifically excluded from participating in those diversion programs and a permanent record can result in a DUI drug conviction. A DUI drug conviction will result in certain mandatory penalties, so if somebody was stopped for driving under the influence and convicted of it, they would be required to be placed on probation, pay fines and take drug and alcohol education and awareness classes.

If they’re in Los Angeles County and they’re convicted of a DUI, they’d also be required to put an ignition interlock or breath test machine in a car. You can have a situation where somebody is arrested for driving under the influence of marijuana, convicted of driving under the influence of marijuana and required to put a breath test machine in a car, which has absolutely nothing to test for marijuana but that’s the state of the law.

Answer: It’s going to depend. Sometimes police officers can search a car if they’re doing an inventory search after someone has been arrested, but if there’s no consent and the person hasn’t been arrested and they’re not impounding the car, then an officer should not search the contents of a car and there would be very big grounds to get the evidence suppressed or thrown out.

So if the police officers went into a duffle bag in the back seat or they went into the trunk and they went into some area that they could not easily see without taking some physical steps to get to it, then there may be legal grounds for getting that evidence or that information excluded. Now, they may be able to go forward with the DUI case if they can prove that separately but if they’re trying to convict somebody of possession of drugs and they found those drugs without a warrant in doing an illegal search, that evidence will be suppressed and thrown out.

Answer: If a driver and a passenger are both impaired and the police officers believe that they can prove that both of those people drove at some point, they could conceivably arrest both people. If the driver is impaired and arrested, the passenger could be asked to leave, they could impound the car and then if that passenger was not able to care for themselves, they could be arrested as well for being drunk in public.

Answer: When somebody is stopped for driving under the influence of drugs, the officers need a varying degree of suspicion or probable cause to stop, to detain and to arrest somebody. An officer needs reasonable suspicion to believe that a crime was being committed in order to stop somebody. So if someone’s driving down the street and they are weaving, lane straddling, driving with their headlights off, if they’re committing some vehicle code violation, the officer has reasonable suspicion that a crime has occurred. Once they’re stopped, the police officers cannot make an arrest without probable cause.

It’s a higher standard; they need more evidence to justify an arrest and a lot of times this information is obtained or gotten by the police officers when they talk to the person in the car. So if the police officer stops somebody, walks up, asks them to put the window down, that is because of an infraction vehicle code violation.Then when they’re talking to someone, they may notice some signs or symptom of someone who might be under the influence which would give rise to justify a longer detention and possibly probable cause to make an arrest.

Usually, in a DUI drug case, probable cause is obtained by police when somebody agrees to do the field sobriety test. What the officers are looking for to get probable cause for an arrest is poor performance on field sobriety tests. They may start with the odor of a particular drug. Sometimes it’s alcohol but if we’re talking about DUI drugs, a lot of times the officer will allege that they smell the odor of burnt marijuana, they may claim that there are other smells inside the car that could lead them to believe the person may have recently done drugs. So they will ask the person to get out, they may check their eyes, they may check their mouth to see whether they appear to be dehydrated or if they have other visible symptoms that may be from drugs.

The officers will then often conduct field sobriety tests which were designed for alcohol but they will use them to try to determine whether or not there’s any impairment from drugs. The field sobriety tests could be the standardized field sobriety tests or they could be non-standardized tests and some officers are trained in what is commonly called the DRE protocol or Drug Recognition Evaluation protocol. Some officers are trained to do a DRE 12-step evaluation ranging from checking the eyes, checking the pulse, checking muscle tone, field sobriety test as well as asking significant questioning of a person to determine whether or not there’s probable cause to arrest for impairment from drugs.

So there’s a lot of different things that a police officer could look at starting from the very beginning with driving and reasonable suspicion through a detention to prolonged detention and ultimately culminating in a DUI arrest based on probable cause. If the officers do not have probable cause to make an arrest, then anything from that point forward could be thrown out by a judge or suppressed.

Answer: It’s not unusual in today’s day and age for employers or prospective employers to find out about a DUI or a DUI drug arrest. The fact that someone has been arrested is often public record; a lot of times newspapers will get that information and publish it and an employer doing a background check can find that DUI arrest or conviction on the record if they know where to look.

A lot of times employers will first find out that there’s a problem by looking into somebody’s driving record. So what happens at the Department of Motor Vehicles is very important because although some employers do run background checks and look into potential criminal charges against somebody, many more will run DMV driving record printouts and find potential administrative actions against people. So it is very possible that an employer would find a criminal record or a DMV record if they were to look and someone had been arrested or convicted of driving under the influence of alcohol or drugs.

Answer: When someone’s arrested for DUI, it makes a big difference if it’s DUI alcohol or DUI drugs. If someone’s arrested for DUI alcohol, the officers are supposed to confiscate their driver’s license and send paperwork to the Department of Motor Vehicles informing them that someone was arrested for DUI alcohol. The DMV does not have the same administrative per se regulations for DUI drugs that it does for alcohol.

So many times the Department of Motor Vehicles will not take any action against somebody simply based on a DUI drug arrest. Now if they were convicted of a DUI drug, that would trigger a suspension because there is a DUI conviction or the DMV could take their own independent action if they were to find that somebody was addicted or abusing medication, either prescription or illegal.

Answer: If it’s a regular DUI drug case, a lot of times the Department of Motor Vehicles will review the file and actually set aside or take no action because in California there is no per se limit for DUI drugs. Some jurisdictions may have a specific level so say we’re talking about marijuana and somebody is driving and they have 5 nanograms of active metabolite in their system, the court or the DMV in that jurisdiction may say that’s enough to suspend the license, but in California right now, we don’t have a specific per se limit when it comes to DMV hearings and medication. So a lot of times the DMV will just set aside and take no action against somebody who was arrested for DUI drugs only.

Answer: It’s very important to hire a skilled and experienced DUI attorney to handle a DUI drug case and when looking for an attorney to handle a DUI drug case you don’t want a regular criminal defense attorney and you don’t want a regular DUI attorney. You want a DUI attorney who understands drugs and the effects of drugs on the human body and what can and cannot be proved scientifically in court.

DUI drug cases are not like DUI alcohol cases and there’s a lot of nuances that go into them and it’s far more difficult for a prosecutor to convince a jury that somebody’s impaired from medication or drugs than it is alcohol. Everybody knows that you shouldn’t drink and drive, but the same rules and guidelines don’t exist for drug DUIs. Drug DUIs are tested differently than alcohol DUIs and you need an attorney who knows the ins and outs of the chemical testing procedures – where the defects are in testing for urine and where the defects are in testing blood for drug content. A lot of times, prosecuting agencies and the crime labs that do work for them, say, Los Angeles County Sheriff’s Department Crime Lab, may not have the ability to test the blood sample for a particular drug. There are certain agencies, certain police departments here that have to send their blood samples out of state to have them tested. This creates huge delays and huge problems for prosecutors in handling cases. It’s important to know which police department sends their blood samples to which labs, and it’s important to know what prosecutors know and don’t know about blood analysis and urine analysis and how to find the holes in the cases.

When you’re looking for an attorney to handle a DUI drug case, you’re going to want an attorney who’s trained in the DRE protocol, the Drug Recognition Evaluation protocol. You want an attorney who’s been through the same class that the police officers go through to become trained in how to identify different classes of drugs and how they affect people. You’re going to want an attorney who’s been trained on the blood or urine analysis equipment and the gas chromatograph to know how it works, how to fix it, how it breaks, and where to look for holes in the case. In order to get the very best possible defense, you’re going to want an attorney who focuses his practice not only on DUIs but knows the ins and outs of DUI drug cases. And if you get an attorney who knows DUI drugs inside and out, you will be amazed at what type of deals or dismissals you’re able to work out.

Prosecutors do not want to try DUI drug cases against somebody who knows what they’re doing because the likelihood is they’re going to lose, so a lot of times we are able to get fantastic deals for our clients because the prosecutor can be shown that they’re not going to be able to prove beyond all reasonable doubt that the person was impaired from medication. There’s a lot of things that can affect driving, people get in accidents all the time, people swerve, people speed and people don’t use signals. There are a lot of reasons why someone might do something and drugs are not often the cause of the DUI stop. It’s usually something else and the officers are on a fishing expedition to find it. The DUI drug defense attorney knows the tricks and knows the ways to get cases reduced and dismissed.

Answer: I recently handled a DUI drug case where my client, a young lady, was stopped and arrested for suspicion of driving under the influence of drugs, specifically marijuana. The police officers involved were California Highway Patrol officers who were trained in the 12-step Drug Recognition Evaluation protocol program. They went through that entire test and analyzed my client for possibly being under the influence of marijuana. She was charged for it and she was tested with a blood test.

The matter was submitted to the city attorney’s office who decided to file charges. We went to court and we litigated; we thought about whether or not the city attorney’s office would be able to prove that she was impaired from marijuana use. After fighting with the city attorney for several months and reviewing the blood documents and the analysis that was done, the city attorney realized that they would not be able to prove beyond reasonable doubt that her performance on field sobriety tests and the different testing was conclusive that she was impaired from marijuana. What we were able to show is that the testing which took place over about an hour and a half or 2 hour period of time was consistent from beginning to end and didn’t vary much so if there was impairment, it was not from the use of marijuana.

The drug levels in the blood also were not conclusive as far as impairment and the city attorney’s office realized that further blood analysis would need to be done at considerable cost in money and time. We agreed to a final resolution which resulted in a DUI drug charges actually being dismissed and substituted in their place were a couple of infractions so my client was originally looking at a full-blown DUI. Through the proper handling of the case we were able to settle it for a speeding and weaving ticket. Of course, my client was very happy to be done with the court case, avoid trial and not have a DUI conviction on her record. So that is one example of what can be done with DUI drug cases and knowing how to properly defend them.