When can you be arrested for drugged driving in California?

Christopher J. McCann - Criminal Defense: DUI/DWI - Super Lawyers

Answered by: Christopher J. McCann

Law Offices of Christopher J. McCann, APC
Santa Ana, CA
Phone: 888-973-6193
Fax: 888-361-4CJM

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Before they can legally pull you over, officers must have a reasonable suspicion of a violation of the law, such as speeding or other Vehicle Code violations. An arrest for drugged driving requires evidence that one’s ability to safely operate a motor vehicle was impaired as a result of having consumed drugs.

After the stop, officers may try to get this evidence by asking whether you have had anything to drink or taken drugs or medications. It is best to invoke your right to remain silent and not answer these questions. This is because if you admit to any drug use – even a small amount many hours earlier – officers will accept your statement as an admission of recent consumption, arrest you, with a resulting blood test positive for drugs then used to” confirm” their suspicion of impairment by drugs.

Even without an admission of drug use, officers could try to justify an arrest by using other tactics. These include field sobriety tests and testimony from so-called “drug recognition experts” (DREs). Field sobriety tests have not been validated for drugs, however, and DREs have no objective way to demonstrate drug impairment. All field sobriety tests are voluntary and should be refused!

When A Stop Is (Or Isn’t) Permissible

Officers do not have carte blanche to pull motorists over. To make a valid stop, officers need to have a reasonable suspicion of a law violation. The violation could be speeding, driving with a broken tail light or a driving with headlights off at night.

A surprisingly common scenario is when officers claim you were “weaving” within your lane. They may try to point to this as reasonable suspicion of DUI.

Under well-established case law in California, however, weaving within one’s lane does not justify a stop unless there was “pronounced weaving” for a “substantial distance” observed by an extensively-trained officer. The case on point is People v. Perez, (1985) 175 Cal. App.3d. Supp. 8.

Preliminary Investigations And Police Tactics

Once officers have made a stop, they often try to get drivers to admit to consuming alcohol or taking drugs or medication. For you as a motorist, it makes sense to not respond to such queries. In fact, you should specifically state that you invoke you right to remain silent. Your refusal to answer may make officers suspicious, but suspicion is not evidence.

What can easily happen if you do answer, is that the officers may exaggerate your response. For example, if you tell them you smoked marijuana days ago, they will infer that you are lying and that you really smoked an hour ago. What the officers are looking for is any justification to arrest you and force you to take a blood test, knowing that some residual amount will be found. Any drugs found in your blood will be used to support an inference that any poor driving was the result of those drugs. And if you are arrested, and you refuse the blood test, they can get a warrant to force you, and you may suffer additional consequences in court or with the DMV.

Another certainty after the stop is that officers will try to get you to take field sobriety tests.

Insisting On Your Rights

There are several problems with this push by officers to get you to perform field sobriety tests. For one thing, field sobriety tests have not been validated for determining impairment by drugs, and, more importantly, you do not have to take them anyway.

Moreover, even a blood test does not conclusively show drugged driving impairment in the way that a .08% blood alcohol level does for drunk driving. If you’ve been consuming cannabis or any other drugs, there is no “per se”, or presumed, drugged driving violation under California law for having a specific level of THC or other drugs in your blood.

In addition, the contention that drug recognition experts (DREs) can ferret out which drugs someone was taking is highly problematic. Though DREs do receive additional training in how to detect impairment by drugs, ultimately, they are merely just cops with a subjective opinion. Their opinions are subjective because there are no definitive objective standards for determining drug-impaired driving.

The Ubiquity Of Drugs And Meds

In our highly medicated society, issues of what constitutes drugged driving are unavoidable. From Xanax and Ambien to marijuana and methamphetamine, more and more people are on something. As we have discussed, however, taking prescription drugs, recreational pot or other drugs does not necessarily mean someone can be lawfully arrested for drugged driving. Both the Fourth Amendment and California law (and a good lawyer!) provide important legal protections against unfounded allegations of drug-impaired driving.


Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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