Drug DUI Lawyer in San Jose, CA No Per Se Number in the Statute

The two subdivisions with no threshold attached

Vehicle Code section 23152(f) states that it is unlawful for a person who is under the influence of any drug to drive a vehicle, and section 23152(g) states that it is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle (Vehicle Code 23152). Neither subdivision names a concentration. Subdivision (b) supplies a rebuttable presumption for alcohol at 0.08 percent, and subdivisions (d) and (e) supply 0.04 percent figures, but nothing in the section attaches a number to a drug. The DMV states the same rule in plainer language, that the law does not see a difference between illegal drugs and medications obtained from a doctor or a pharmacy (California DMV).

Which test the implied consent statute allows

Section 23612 sets out the testing framework. A person who drives is deemed to have given consent to chemical testing of blood or breath for the purpose of determining alcohol content, and to a blood or urine test for the purpose of determining drug content, if lawfully arrested for a section 23140, 23152 or 23153 offense (Vehicle Code 23612). The statute then adds a step that matters in drug cases: if the person completes a breath test and the officer has reasonable cause to believe the person was driving under the influence of a drug or the combined influence, the person may be requested to submit to a blood test, and the officer shall state in his or her report the facts upon which that belief and that request are based. Where the person chooses a urine test because blood and breath are unavailable, or because of hemophilia or an anticoagulant taken for a heart condition, section 23612 provides for it. Section 23612(h) states that a preliminary alcohol screening test is a field sobriety test and may be used as a further investigative tool.

How the sample is handled, and for how long

Because a drug case usually rests on a blood or urine sample, the regulations governing collection are part of the record. Title 17 of the California Code of Regulations, section 1219.1, requires blood to be collected by venipuncture as soon as feasible after an alleged offense, prohibits alcohol or other volatile organic disinfectant on the skin, requires sterile dry equipment and a clean dry container closed with an inert stopper, requires an anticoagulant and a preservative, and requires that the remaining portion of the sample be retained for one year after the date of collection (17 CCR 1219.1). Section 1219.2 requires a urine sample to be collected no sooner than twenty minutes after first voiding the bladder, deposited in a clean dry container containing a preservative, and retained for one year (17 CCR 1219.2).

Cannabis in the vehicle is a different offense

Possession is separate from impairment. Section 23222(b)(1) provides that a person who has an open container or open package of cannabis or cannabis products, or a receptacle containing cannabis flower that has been opened or has a seal broken, while driving is guilty of an infraction punishable by a fine of not more than $100 (Vehicle Code 23222). Subdivision (b)(2) exempts a container or receptacle carried in the trunk, and subdivision (c) provides an exception for a qualified patient or person with an identification card whose container is closed or resealed.

The administrative side does not always follow

The administrative per se suspension under section 13353.2 is keyed to numbers: 0.08 percent or more, under 21 with 0.01 percent or more, 0.04 percent or more in a commercial vehicle, or 0.01 percent or more while on DUI probation (Vehicle Code 13353.2). A drug-only case with no measurable alcohol does not meet any of those descriptions, which is why a drug DUI can proceed in criminal court without an immediate administrative suspension attached to it. A refusal is a different matter, because section 13353 attaches its own suspension and revocation periods to a refusal or a failure to complete a test (Vehicle Code 13353). The DMV also publishes a separate restriction option sheet for drug-only DUI offenders, and states that repeat offenders whose violation involved drugs only are outside the statewide interlock pilot program (California DMV).

Where the case is heard, and what cannot happen

A San Jose drug DUI is answered at the Hall of Justice at 190 West Hedding Street, the courthouse the Santa Clara County Superior Court assigns criminal matters from San Jose, Milpitas, Los Gatos, Saratoga, Monte Sereno and Santa Clara (Santa Clara County Superior Court). One route that exists in other misdemeanor cases is closed here: section 23640 provides that in a section 23152 or 23153 proceeding the court may not suspend or stay the proceedings for the purpose of allowing the accused to attend or participate in an education, training or treatment program (Vehicle Code 23640). Treatment can still appear as a condition of probation under section 23600 and the offense-specific probation statutes, but not as a substitute for the proceeding. This page is general information about California law and is not legal advice. A person facing a drug DUI allegation should speak with a licensed California attorney, and the attorney advertising on this site can be reached at the number posted here.