Under The Influence: Different Standard for DUI and Drug Charge

Drug and DUI defense lawyers in Orange County

Often, when the police make an arrest for DUI when the driver is under the influence of drugs instead of alcohol (DUI drugs), the District Attorney will file charges for DUI (California Vehicle Code Section 23152(a)) and for being under the influence of a controlled substance. (Health and Safety Code Section 11550). This latter charge is troublesome because it carries a mandatory 90-day jail sentence. This jail sentence can be avoided in cases where the defendant has no prior drug convictions—POSSESSION, drug sales, manufacturing drugs, etc. If the defendant has no prior drug charges then they can do drug diversion counseling instead of the 90-days in the Orange County jail.

DUI Attorney in Orange County know that it is also very easy to convict someone of being under the influence of a controlled substance. The DA simply must prove that the defendant willfully and unlawfully used a controlled substance a short time before their arrest OR that the defendant was willfully and unlawfully under the influence of a controlled substance at the time of the arrest. (Calcrim 2400 jury instruction). Of course, a prescription for the controlled substance is a complete defense to the charge. But if the defendant doesn’t have a prescription, then the DA may have an easy conviction.

The blood test conducted shortly after arrest will show the presence of the controlled substance. Typical controlled substances include Zanex, Valium, Methamphetamine, cocaine, heroin, and marijuana. Because the blood test shows the presence of the drug, there isn’t much room for your Orange County DUI Attorney  to argue that you didn’t use the drug. However, a blood test will not show when the defendant used the drug so the DA usually will also have to show that the defendant was “under the influence” of the drug. But the standard for being “under the influence” for purposes of this crime (H&S 11550) is much lower than the level of impairment required to convict a person of DUI. For an 11550 charge the DA need only show that the controlled substance had “appreciably affected a person’s nervous system, brain, or muscles or has created in the person a detectable abnormal mental or physical condition.” (Calcrim 2400)

Compare this to the impairment that must be shown to convict someone of a DUI. The DUI standard requires the District Attorney to show that as a result of consuming drugs, the driver’s mental or physical abilities were so impaired that he or she was no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.  (Calcrim 2110) Thus, the level of impairment that must be proven by the DA is much greater for a DUI charge than for a being under the influence charge. Therefore, in a Drug DUI case where a defendant is also charged with being under the influence (H&S 11550) a DUI Lawyer in Orange County will often attempt to negotiate a deal where the DA dismisses the being under the influence charge in exchange for a guilty plea to the DUI. This avoids the mandatory 90-day jail time.

If you have been arrested for DUI or DUI drugs, call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free telephonic consultation with a dui lawyer. We’ll explain your options and possible defenses. You can also visit our website at www.EJEsquire.com. We have offices at:

1901 Newport Blvd.

Suite 350
Costa Mesa, CA 92627

32072 Camino Capistrano

2^nd floor
San Juan Capistrano, CA 92675

Orange County drug defense attorneys