Can you be convicted of a Drug DUI from withdrawal symptoms?

Posted by on March 11, 2016 in #DUIdata, Uncategorized | 0 comments

Can you be convicted of a Drug DUI from withdrawal symptoms?

Can you be convicted of a Drug DUI from withdrawal symptoms?

We just got this semi-recent case* handed down**, and the answer is yes.  If you do whatever drug(s), and then are feeling withdrawals, or impairment (to a certain legal level that can be proved beyond all reasonable doubt), then you may have just won yourself a Drug DUI conviction.

Ok, let me give some background and then I’ll explain the issue and answer.

What is a drug DUI?

California Vehicle Code 23152(e) makes it illegal to drive a vehicle “under the influence of any drug.”

Well, high fives for that Captain Clarity…but what does “under the influence mean” for purposes of drug impairment and driving?  Because the legal definitions matter.

Ok, so two things need to be proven beyond all reasonable doubt for a drug DUI in California:

  1. That you drove a vehicle (and drive means you created “volitional movement” in the car…that you made it move in some way, even if a small amount).  AND
  2. That you were under the influence of a drug or drugs.

So we’re back to what that means.  So we look at the jury instructions, under CALCRIM 2110 for these definitions.

“A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.”

That’s the key term to argue, “appreciably impair.”  That’s where Lawyer Fun starts, because it’s a loose term to be duked out in trial, and ultimately a question for the Jurors to decide.

Is “being under the influence of drugs” different than “driving under the influence of drugs?”

This Jiminez case pulls this analysis from a 2004 Cal Supreme Court case People v. Cantywhich lays out the Supremes differences between just straight up being under the influence by drugs, versus DRIVING while under the influence of drugs.  They say:

  1. First, a person can be convicted of being under the influence (not driving) merely “by being in that state in any detectable manner[.]” But a drug DUI takes more impairment.
  2. Second, a simple drug-use misdemeanor focuses on “the individual offender’s own private involvement with the proscribed substance”, but a DUI misdemeanor “primarily is concerned not with the offender’s use of the proscribed substance, but with his or her use of a motor vehicle[.]”
  3. Third, whereas the Legislature intended to “protect the user from the consequences . . . of his or her own conduct” in proscribing being under the influence, it intended to “protect the public and guard against the threat of injury to others” in proscribing DUI.

Can you be “under the influence” from withdrawal or other side effects?

Yep.  Here, in Jiminez, it was proven Defendant was sleepy from coming down from previous meth use.  He crashed into another car that unfortunately left two persons dead.  At trial, a jury convicted him of second degree murder (Jiminez had a two prior DUIs) and gross vehicular manslaughter while intoxicated.

Simply put, the Court here says we’re not going to NOT let you be prosecuted if you’re under the impairment from coming off of or withdrawing from a drug.  “We cannot overlook the fact defendant endured the effects of methamphetamine withdrawal—namely, sleepiness—precisely because he had used methamphetamine.”

Hugs, not drugs folks.


*It came down in December, and I’m getting caught back up on legally geeking out and blogging. Ok, ok, I’m SORRY! ; )

**People v. Jimenez, California Court of Appeals, decided December 11, 2015, cited as 242 Cal.App.4th 1337.


About the author, San Diego DUI lawyer Eric Ganci:

cropped-Eric_12-26-13.jpgI am an owner and DUI lawyer in San Diego with my own firm Ganci, Esq., A Professional Corporation.  I am trained in blood testing for drugs and alcohol, trained on breath testing, and trained to train police on field sobriety tests.  I have authored Thomson West Publications regarding DUI science and law, and am a founding member of the DUI Lawyers Association, a national group.  

I am recognized, after completing the required coursework and passing the certification exam, as a Lawyer-Scientist by the American Chemical Society, Chemistry and the Law division.  I have been fortunate to be awarded many other awards, and  you can see my full bio here.

I received my JD from Thomas Jefferson School of Law, my BA in Music Education from Northern Illinois University, and graduated from the Trial Lawyers College in 2013.

I have offices in San Diego and Vista (North County San Diego), and I represent persons arrested for DUI in all counties in San Diego.

On the side, I am a drummer with my San Diego live band karaoke group, Rock Out Karaoke, and have earned several musical accomplishments, such as opening for Anthrax and having Ving Rhames say “I like your band’s cd.”

Also, per California Rules of Professional Conduct, I must say this blog may be seen as a solicitation.  Although I try to simply make them informative and entertaining, some persons may take it as a legal solicitation.  It’s not, and it does not in any way form any kind of attorney-client relationship with whoever reads it.

Eric Ganci, Esq., DUI trial lawyer

Ganci Esq., APC

Cell: 760-216-4941


Fax: 888-241-5887


Downtown office:

110 West C St, Ste 712

San Diego CA 92101


North County office:

950 Vista Village Dr

Vista, CA 92084


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