Different DUIs


Not all DUIs are the same. Differences arise from the substance that is the basis of the DUI (alcohol, drugs or both), or from the special license status of the driver (under 21 years old or commercial license). Lastly, refusing a chemical test is a different kind of DUI than others.

Driving under the influence of drugs (lawfully or illegally obtained drugs)

The substance that the driver consumed before getting behind the wheel can drastically influence the nature of the case and its outcome. For example, drug usage is treated differently, and often more harshly, than just the consumption of alcohol and operation of motor vehicles.

“Drugs” include both lawful and illegal drugs. Lawful drugs may be over the counter or prescription based. Please note that you may be charged with driving under the influence of a prescription or otherwise legal medicine. The mere fact that you have a prescription or have purchased the medicine lawfully over the counter does not prevent a DUI charge. Many of the legal drugs, whether they are sold over the counter or require a prescription, come with the warning that a person should not operate a motor vehicle within a certain amount of time after ingesting them.

Different DUI Types

Illegal drugs include marijuana and “controlled substances,” such as cocaine, methamphetamine, heroin, and ecstasy. If a person is under the influence of a “controlled substance” while operating a motor vehicle, the punishment is potentially extremely severe. Normally, a person under the influence of a “controlled substance” may be eligible for relief from criminal charges by taking drug classes (“deferred entry of judgment”) or (“Proposition 36″). The advantage of drug classes is that upon successful completion of the classes, the case is dismissed and no conviction for the drug charge will be on the person’s record.

However, if the person is charged with both a drug and non drug crime, the non drug charge or charges render the person ineligible for drug classes. Although driving under the influence cases may have a drug use component, courts interpreting these statutes have ruled that a driver is ineligible for the relief offered by drug classes (dismissal, no conviction on record).

Instead, the person charged with driving under the influence of a controlled substance faces the double whammy of both alcohol and drug related consequences. The alcohol related consequences are described in greater detail in another article, “Punishment.” To recap, however, the licensee as to alcohol punishment faces probation (either informal [no probation officer] or formal [with an actual probation officer]), a fine, mandatory jail time and/or alternative custody, an alcohol school, interlock device, and at least a four month license suspension. Conviction of a drug related offense carries such requirements as search terms (the police may stop and search you or your vehicle, as well as enter your home, without any reason), registration as a narcotics offender, and testing terms (the police, without any reason, may make you provide a blood or urine test for the detection of drugs). By far, the worst consequence though, for a driving under the influence of a controlled substance is the ninety day mandatory minimum jail sentence that could not be avoided through drug classes.

Driving while having marijuana in one’s blood

Some jurisdictions are zealously prosecuting persons arrested for driving after having smoked marijuana. The fact of using marijuana by itself, or with alcohol or other drugs, may dramatically impact the outcome of your DUI case. Studies have consistently shown that smoking a small amount of marijuana before driving does not impair the driver. However, smoking marijuana and consuming alcohol or other drugs as well may cause synergistic effects (the combination may enhance the effects of each to impair the driver even more).

Typically, if a police officer suspects a driver of having smoked marijuana, the officer may lawfully insist that the driver submit to a blood or urine test. Blood or urine tests may detect and also quantify (set an amount) marijuana and/or other substances. Obviously, if other substances are detected and quantified in addition to the marijuana, the case is much more problematic. If other drugs are detected, as discussed in the section devoted to legal and illegal drugs, additional consequences may ensue.

The goal in marijuana driving under the influence cases is, as elsewhere, dismissal or reduction of charges. If the case is not dismissed outright, reduction of charges to something other than an alcohol related offense (to avoid future enhancement via this offense being considered a prior offense). The best reductions include 647(f) of the Penal Code (public intoxication) or 23103 of the Vehicle Code (“dry reckless,” non alcohol related).

Under 21 years old and driving under the influence

Persons under 21 years old who are charged with DUIs must be especially vigilant about their license status. The DMV may suspend an under age drinker who either fails to submit to a preliminary alcohol screening device test (“PAS” test, done by the side of the road) and/or who has a blood level alcohol reading of .08% or higher (that person is also subject to criminal prosecution). Furthermore, the “zero tolerance” statute makes it illegal for a person under 21 to have any measurable amount of alcohol in his or her body. Thus, the DMV may try to suspend an individual’s license if the person under 21 had a blood level alcohol reading of .01% or higher!

There are defenses against such suspensions. For example, the PAS test itself must meet standards of admissibility for its result to be introduced (the particular apparatus was in working order; the operator was properly trained and qualified; and the test was properly administered.). Moreover, the DMV must show, in the case in which a person allegedly failed to submit to the PAS test that the officer properly admonished (warned) the under age driver about the need to take such a test.

If stopped and arrested for a DUI, a person under 21 must contact an attorney as soon as possible because the loss of license is one year for the first offense. If a person who is under 21 years old suffers a one year license suspension because of the “zero tolerance” provision, the person may have some relief available via a finding of a “critical need to drive.” Appropriate documentation must be filed with the Department of Motor Vehicles. An applicant for a “critical need to drive” finding should demonstrate the extreme importance of driving. Attending school, earning money at work and caring for serious medical needs are three different reasons that may enable a person under 21 years old to obtain a “critical need” finding to continue to drive. To bolster his or her request for a “critical need to drive” finding, the person should obtain letters of admission and transcripts from school, employment letters or medical documentation, including letters from treating physicians explaining the diagnosis, treatment and prognosis of the injury or disease. In addition, the person ought to show the absence of public transportation for the routes that the person must travel to the locations (schools, work, medical providers). Mere inconvenience will not suffice.

Commercial licenses

A particular portion of the DUI statutes, Vehicle Code Section 23152(d), applies to commercial drivers. Commercial drivers are prohibited from operating a commercial vehicle with a .04% or more, by weight, of alcohol in the blood. However, what happens when the commercial operator is not driving a commercial vehicle but rather his/her own private vehicle and is arrested for a DUI? The DMV will try to impose the same suspension as if the commercial driver was operating a commercial vehicle: one year suspension for a first offense. The law is extremely severe for a second offender: a life long impossibility to have a valid commercial license.

Refusing a chemical test

Refusing a chemical test is a reason for an enhanced (greater) sentence. Pursuant to Vehicle Code section 23577, additional jail time is mandatory for a refusal of a chemical test. For a first offense DUI, the sentence is enhanced by 48 continuous hours in the county jail, a second offender’s sentence is increased by 96 continuous hours in the county jail, a third offender’s sentence is lengthened by 10 days and a four offender’s sentence goes up 18 days.

However, there are different kinds of “refusals.” The facts of a case must be examined to determine if an actual “refusal” of a test really occurred. For example, a person may not speak English as a first language and because of linguistic problems may not understand fully the admonition given by the officer. Second, the officer himself or herself may be a cause of the refusal by his or her outlandish conduct. Third, the officer may have failed to advise (“admonish”) the driver about the consequences of a refusal. Vehicle Code section 23612 requires the officer to tell the driver that his/her driving privilege will be suspended if the individual fails to submit to a chemical test. If the officer fails to provide the proper admonishment, the license should not be suspended despite a refusal by the driver to submit to the test. Fourth, the driver may simply be unable to complete the test (often the case in a “breath” test when, because of lung ailments, a person is not perceived by the officers to be exhaling, “blowing hard enough,” when in fact the person is blowing as forcefully as possible).

If a licensee fails to submit to a test, the driver will lose his license for one year for a first offense DUI. If the licensee has a prior DUI within ten years, the DMV will revoke the person’s license for two year if the driver refuses to take a chemical test. A person with two priors within ten years will face a license revocation of three years if he/she refuses a chemical test.