Joseph P. Hougnon, Attorney at Law

Drug-Related DUI Defense in Sacramento

In drug-related cases, the DA will likely file charges of a violation of VC§23152(E) – “It is unlawful for a person who is under the influence of any drug to drive a vehicle.” The DA has the burden to prove beyond a reasonable doubt your ability to drive was impaired due to a drug in your system at the time of driving.

Many people are unaware of the fact that it’s possible they could be charged with a DUI even if they are taking their prescription as prescribed. In most instances, prescription drugs that have the potential to impair a person’s ability to drive safely have a warning label that will indicate you should “use caution while driving or operating machinery” or some other type of warning. In some cases, a drug that typically doesn’t impair a person may do so if taken in high quantities, but that’s not as common.

Some District Attorney’s Offices will order quantitative tests of blood samples taken after a DUI arrest. Quantitative tests determine how much of the drug was present at the time of testing. Qualitative testing is more common these days due to cutbacks in most government services. In that case, depending on the evidence and information I usually get from forensic expert, I may recommend ordering a split of the sample and a quantitative retest if one hasn’t been done. The operative word here is “depends.” I did win a jury trial years ago after the defense did a quantitative retest of the “meth” that was found in my client’s system – the result did not help our case at all. Fortunately, though, given that I had no intention of introducing that results at trial, and the fact that the DA’s Office did not perform their own quantitative test and did not check to see we had one performed, we got an acquittal on the DUI charges.

However, having a controlled substance in one’s system without a prescription usually triggers a filing of the additional charge of a violation of Health and Safety Code section 11550, being “under the influence of a controlled substance.” Unlike a DUI charge of a violation of VC§23152(E), where being “under the influence” is proven by proving the defendant’s ability to drive was impaired, to prove a violation of HS11550 the DA only has to show the presence of the drug and “recent use,” which has been extended to a period of several days in cases that have been appealed. For those “under the influence” of “meth”, the science tells us that one can be impaired long after the last dose, even if the levels found in the blood are relatively low.

The minimum sentence for a violation of HS11550 is 90 days in jail (work project in some cases), although in my experience I’ve been able to negotiate outcomes that did not include the 90 days in jail, and DA’s in most counties will offer to dismiss or reduce the HS11550 charge if the defendant pleads to a DUI in negotiations. So, if you have a potentially defensible DUI case, but the HS11550 charge is provable, it’s even more important to understand your options and chances of success before setting a case for jury trial.

Are Marijuana-related DUI’s Defensible?

If you’re arrested for a DUI and have marijuana in your system, you may have a defensible case. Contrary to popular belief, people who use marijuana regularly typically are not impaired by the drug due to a resistance to those effects. Having a marijuana prescription will usually be helpful for several reasons, but will certainly make it more difficult for the DA’s office to argue you’re a “naïve” (first-time) user, meaning you’re more likely to have zero driving impairment, especially if you used the drug four hours or more before driving. This is why the proposals currently being considered by politicians to institute a Per Se THC limit make no sense. Colorado and Washington have legalized marijuana. Both states have a Per Se limit of 5 nanograms of THC per milliliter. This is an example of a law that was passed based upon ignorance and misunderstanding that will lead to many unjustified arrests. If California passes a similar Per Se law for marijuana-related DUI cases, those who test over the THC limits set by legislation may be presumed guilty, as they are now in alcohol-related cases with BAC’s of .08% or more, shifting the burden of proof to the defense. Sadly, that will include many people who haven’t smoked, ingested, or vaporized marijuana for several days, or even weeks prior to their arrest.

Forensic expert who have knowledge and experience with the effects of marijuana will tell you those who use marijuana regularly are likely to have a tolerance and are not a danger on the road. But, there is one caveat: if a person combines marijuana with alcohol and/or another drug (including prescription drugs) that can cause impairment, they may have an indefensible case, unless quantitative blood tests show the levels are low enough to raise doubt. Some officers are trained Drug Recognition Experts (DRE) and add enough observations into the report to make the case more difficult to defend.

Defending marijuana-related DUI cases will depend on the levels of each substance found in your system, and whether the symptoms recorded in the report are consistent with the types of impairment one would expect to see given levels found in your blood. I almost always recommend a quantitative retest (for THC and Delta 9) and a forensic review in these cases. In my experience, depending on the driving described in the report and/or on the ICC video (if available), DA’s are more likely to offer a “Wet Reckless” in these cases. But, if you’re case is completely defensible, it’s likely I won’t recommend you accept a plea bargain to the reduced charge, as it is still a “DUI” for most practical purposes.

If the DA agrees to a “Wet Reckless”, though, your fines will be about half the usual DUI fines, there is no work project (unless other charges or it’s a 2nd or 3rd DUI), and you’ll usually have the option of taking a shorter twelve-hour DUI program rather than a three, six or nine month program ordered in DUI cases, but you’ll still be placed on 3 years informal probation that includes an order you don’t drive with any drugs (likely to impair you) or alcohol (yes, even though your case is not alcohol related).

If you’re later legally pulled over while on DUI probation, you’ll have to submit to the PAS breath test on the scene. If the results are .01% BAC or more, DMV will suspend your license for a period of one year, unless your attorney can find a way to keep the evidence from being admitted at the hearing.

For more information on Drug Related DUIs, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (916) 730-5251 today.

Joe Hougnon, Esq.

Answers to all your questions are only a phone call away. Call Now at (916) 730-5251.

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