DUI Drug Overview 

If you have been arrested for a Drug DUI, it may be your first experience with facing a criminal charge. If convicted, you could face jail time, fines, suspension of your driving privileges and increased insurance rates. Convictions can have negative consequences on your employment, especially for licensed professionals or commercial drivers. The good news is that Drug DUI’s are difficult for the prosecution to prove because the science favors the driver. Most Drug DUI arrests are not based on impairment but simply because the detained driver admits to using drugs.

DUI Drug Charges

Driving under the influence of a drug is a crime in California under Vehicle Code 23152(e). You are guilty of a drug DUI if you drive a vehicle while your mental abilities are impaired by a drug so that you are unable to drive with the caution of a sober person using ordinary care.

DUI Drug Enhancements

23577 – Refusal to take chemical test

23582 – Excessive speed

23572 – Child under 14 in car

“Under the Influence” Drugs Defined

Under the influence of drugs is defined as “affecting the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, the ability to drive a vehicle in the manner that any ordinarily prudent and cautious person”.

Having a Prescription is no defense

Having a prescription is no defense to a DUI drug charge. Since many people are on medications, there has been a significant increase in Drug DUI’s in California. In many cases, a person gets arrested because they think that telling an officer that they take pain medications, sleeping medications, anxiety and depression medications will not have any DUI implications. The truth is that anytime you admit to an officer that you use any drug even if it’s a prescribed medicine you are getting arrested for a DUI.

Drug DUI and DMV Hearing Set Aside 

The DMV only takes action on alcohol DUI’s and refusal actions. No action should be taken against your license on a drug DUI if no refusal is alleged and there is no alcohol involved. The DMV APS Hearing deals with three things: (1) were you driving, (2) were you lawfully detained and arrested, and (3) did you have a blood alcohol level over 0.08%. Since no alcohol is involved in a Drug DUI, the DMV should set aside your DMV action which means they will take no action on your license. You should always request the hearing and have the DMV send you a letter that they are setting aside the action.

DMV Set Aside Notice

If you win the DMV hearing, you will receive a DMV Set Aside notice which tells you the reason the action was set aside. In a drug DUI, it is because no alcohol or refusal was involved. The notice will also advise you how to get you license back from the DMV.

DMV License Suspension vs. Court License Suspension

There are two ways your driving privilege in California can be suspended. If you lose or default on the DMV hearing, a 1 year suspension can occur for a refusal. If you get convicted in court of a Drug DUI, it will trigger a 6-month suspension on a first offense and 2 years for a second offense.

Important – DMV Hearing Date MUST BE SET Within 10 days of arrest

To get a DMV hearing you must call DMV to request a hearing, it is not automatically set for you. It is your responsibility to set your DMV hearing within 10 calendar days of the arrest. In refusal cases your license will be suspended for 1 year. The number to call to set your DMV hearing is on your Temporary License/Notice of Suspension.

First Court Date

After you are released from jail, you are given a court date for your arraignment. Arraignment is where the government tells you the charges and potential punishment you face. If you hire an attorney, your attorney can appear for you on a misdemeanor DUI so you never have to go to court. If you don’t hire an attorney, you must appear at your first court date or a warrant will be issued.

Temporary License 

At the time of your arrest, the police take your license and give you a Temporary License/Notice of Suspension. This piece of paper is your new temporary driver’s license so keep it with you. If you had a valid driver’s license at the time, you can continue to drive until the DMV sends you back a notice that the DMV action is being set aside.

Notice of Suspension

The notice of suspension notifies you of your right to a hearing to contest the action against your license. Most people don’t read it but it states that you must request your DMV hearing within 10 days. You must read your temporary license and notice of suspension because it contains important information regarding your legal rights.

Reduced DUI Drug Charges – Drug Reckless (VC23103/VC23103.5) 

A drug reckless is reckless driving involving drugs. In Drug DUI cases, your attorney can negotiate for a drug reckless disposition. It’s a better resolution then a DUI because it comes with no license suspension, no IID, and usually no jail time. A drug reckless is a good resolution for commercial/employed drivers, professional licensees, and anyone that needs a valid driver’s license for work. The negative thing about a drug reckless is that it is prior able against you by the DMV or Court if you ever get another DUI within the next 10 years.

Reduced DUI Drug Charges – Reckless Driving (VC23103)

A dry reckless is reckless driving not involving alcohol or drugs. It’s a better resolution then a DUI or Wet/Drug Reckless because it is not prior able against you by the DMV or Court if you ever get another DUI within the next 10 years. There is no license suspension associated with it.

Pharmacology of a drug

Pharmacology of a drug can be divided into two parts.  Pharmokinetics which is how the drug moves about the body and pharmacodynamics, which is how the drug interacts with the receptors in the brain. 

Common Drugs, Clinical Dose, and Duration of Effect





0.25 -2mg

4-8 hours


200 – 350mg

4-6 hours


40 – 100mg

1-2 hours


4 – 40mg

4-8 hours


2 – 4mg

3-6 hours


1-4 hours


20 – 200mg

12-24 hours


2.5 – 15mg

2-4 hours


5 – 30mg

4-6 hours


2.5 – 30mg

4-5 hours


2.5 – 10mg

3-6 hours

DRUG DUI Testing

Most forensic laboratories that analyze blood samples in DUI cases utilize a two-tiered approach. Initially, samples are screened for common drugs or classes of drugs using an antibody-based test. Immunoassay test results are considered presumptive, not conclusive, because the antibodies that are used may cross-react with other substances, resulting in false positive results. Samples that screen positive are then re-tested using a second, more rigorous test, called a confirmation test. The confirmatory test is more specific and will identify the specific drug in the sample. An additional quantitative analysis will determine the amount of the drug in the sample.

Gas Chromatography and Mass Spectrometry

The basis for most confirmatory techniques is separation and positive identification. GC-MS is considered the “gold standard” for methods of confirmatory drug identification. In this method, individual components (drugs and metabolites) are first separated, based upon their chemical and physical properties, by the gas chromatograph (GC). The separated drug then enters the mass spectrometer (MS), where it undergoes molecular fragmentation, resulting in a characteristic mass spectrum or fragmentation pattern. This “molecular fingerprint” of the drug, together with the characteristic retention time from the gas chromatograph allows the drug to be positively identified.

Scientific Defenses

There is no correlation between SFST’s and Drug Impairment

There have been minimal scientific studies on the correlation of drug impairment and field sobriety tests like there has been for alcohol. The Standardized Field Sobriety Test (SFST) endorsed by the National Highway Traffic and Safety Administration (NHTSA) consists of the horizontal gaze nystagmus (HGN), walk-and-turn (WAT) and one-leg stand (OLS). According to NHTSA, standardized field sobriety tests (SFSTs) do not measure driving impairment. These tests were designed to help an officer estimate a driver’s alcohol concentration and establish probable cause to arrest based on their prediction of an alcohol concentration. (DOT HS 808 839, Final Report, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent.) Roadside tests are not relevant to the question of whether a driver was impaired or affected to safely operate his vehicle due to alcohol or drug consumption. They are only relevant to answer the legal question whether or not an arrest was lawful. When an Officer says you failed the field sobriety tests in a Drug DUI case, it doesn’t mean anything scientifically.

Drug Recognition Exams (DRE) are non-scientific

Several doctors have testified to the non-scientific nature of the 12-step process by which DRE’s evaluate impaired driving suspects. One doctor stated that when he reviewed the DRE program, he could not find a single peer-reviewed study of the program in any scientific literature. Further, this doctor said he believed that testimony based on DRE evaluations would be inaccurate and could lead to wrongful convictions. Another doctor testified that there was no evidence to show that DRE’s could distinguish between drug induced impairment and a medical condition. An officer trained in drug recognition is not qualified to make a medical diagnosis, and a symptom of a medical problem or sickness could easily be misinterpreted as a symptom of drug use.

Drug Impairment is difficult to prove with a blood test

With the exception of ethanol, there is no widely accepted correlation between the drug concentration in blood and a corresponding level of driving impairment among the scientific community. The presence of a drug alone in a person’s blood or urine does not necessarily mean that he or she was impaired. Factors such as tolerance can have a profound effect on the pharmacodynamic response in an individual. The extent to which drugs impair driving is difficult to measure, predict or quantify. The presence of a drug metabolite in a biological fluid may or may not reflect consumption of the drug recently enough to impair driving performance. Because the elimination rate is not constant, toxicologists cannot perform retrograde calculations for drugs as they might for alcohol.

DUI Expungement

Even if you are convicted of a DUI, you can still get your case expunged. An expungement allows you to lawfully answer that you have never been convicted of a crime. To be eligible, you must have successfully completed probation, paid all your fines and fees, and completed the terms of your probation.

You don’t have to plead guilty, contact our office today for a free same day consultation

Because you have so much to lose, you need the most experienced and aggressive Drug DUI Defense attorneys on your side. Whether it’s defending you in trial or negotiating for dismissal, you can count on us. Our experienced and aggressive negotiating efforts usually result in better outcomes for our clients including reduced charges, lesser jail days, and smaller fines. Call our office today at (916) 939-3900 to speak directly to an attorney about your Drug DUI case. We are open 24/7/365 to answer your questions.