California Drugged Driving

In California, a person is guilty of DUI if he or she is (1) driving under the influence of any alcoholic beverage or drug, OR (2) driving while addicted to a drug. Cal. Veh. Code §§ 23152(a),(c).

(1) Driving under the influence of any alcoholic beverage or drug. Id. § 23152(a).

In California, it is unlawful to drive under the influence of any drug. However, the state must show that the substance impaired the driver, not simply that the driver ingested the drug and then subsequently drove.

NOTE: there is no exception in section for lawful users of medical marijuana.

(2) Driving while you are addicted to a drug. Id. § 23152(c).

This law is based upon the theory that addicts who are experiencing withdraw symptoms are experiencing an altered state of consciousness which makes them unfit to drive. The courts have provided the following guidelines to determine if a person is an addict. The prosecution’s burden is to show;

(1) that the defendant has become ’emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use; (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and; (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”*

* People v. O’Neil, 62 Cal.2d 748, 754, (1965) — Habitual use alone is not sufficient to show addiction. The court has outlined the distinction between habitual user and addict in the following terms: The addict constantly takes the drug to avoid the pain of withdrawal illness; the habitual user takes it in anticipation of the euphoria it creates for him. One is compelled by fear to use the drug constantly, while the other is induced to such constant use by the prospect of pleasure.”

Implied Consent

  • Any person who drives a motor vehicle on the roads of California is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for either type of DUI. Id. § 23612(a)(1) (A).
  • Failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a DUI, and one year license suspension. If the driver is unconscious or dead, consent is assumed and the tests may be administered. Id.
  • The driver can choose between either a blood or urine test. However, the driver does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law. Id. § 23612 (a)(2)(C).


  • First offense – a period of 96 hours to 6 months in jail; fine of $390 to $1000; license suspension of 6 months; offender must complete a DUI program. Id. § 23536(a)-(d).
  • Second offense (w/i 10 years) – a period of 90 days to 1 year in jail; fine of $390 to $1000; license suspension for 2 years; offender must complete a DUIU program. Id. §§ 23540 (a)-(c).
  • Third offense (w/i 10 years) – a period of 120 days to 1 year in jail; fine of $390 to $1000; license suspension 3 years; ignition interlock device required; offender must complete DUI program. Id. §§ 23546(a)-(b).
  • Fourth and subsequent offense (w/i 10 years) – imprisonment for a period of 180 days to 1 year; fine of $390 to $1000; license suspension 4 years; ignition interlock device required; offender must complete DUI program. Id. §§ 23550 (a)-(b).

Other Penalties & Penalty Enhancer

  • If the driver causes bodily injury to a person while driving under the influence and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle the imposed penalty will be enhanced. Id. § 23153 (a) (1992).

Sobriety Checkpoints

In California, sobriety checkpoints have been upheld under both the state and federal Constitutions.

  • Protocol of sobriety checkpoint stops is to be determined not by standard of criminal investigative stops, but instead by standard applicable to investigative detentions and inspections conducted as part of regulatory scheme in furtherance of administrative purpose. Ingersoll v. Palmer, 743 P.2d 1299 (Cal. 1987).
  • California Supreme Court held that advance publicity is not necessary for a checkpoint to be valid. People v. Banks, 863 P.2d 769 (1993).

Case Law

People v. O’Neil, 62 Cal.2d 748 (1965) — Prosecution has the burden to show the defendant had developed an emotional or physical dependence based on the repeated use of a drug and that defendant required larger and larger doses to obtain the desired ‘high.’

California v. De Leon, 2004 Cal. App. Unpub. LEXIS 11549 – It is possible with the assistance of an expert witness to show a driver was experiencing both withdrawal and that he was under the influence at the same time.