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The Laws In Place For Drivers With A BAC Below 0.08 In California

Interviewer: Are there any laws in the state that address drivers with the BAC below 0.08?

Matthew Murillo: Yes, that’s what the vehicle code section 23152(A) addresses.  It’s kind of a catch all.  At the moment, that relates to alcohol and actually that’s recently changed.  It’s used to relate to alcohol and drugs. Now there is a separate subsection for drugs, but the way that it reads is basically even if your BAC is below 0.08%, if the DA can prove that your driving was impaired and that that impairment was because of alcohol, you can still be charged with the DUI, even if your BAC was 0.03% or 0.04% or 0.07%. Anything below the 0.08%, as long as that impairment is there.

Alcohol Related DUI Cases are More Prevalent In the State of California

Interviewer: Do you see more alcohol related or do you see more drug related?  With the drug related, do you see more illegal or prescription drugs?

Matthew Murillo: It’s still heavily favoring alcohol related DUIs.  I definitely see a lot more of those but it seems like there is a trend that’s starting to pick up with the drug related DUIs a little bit more frequently. Of the drug related DUIs, it’s usually prescription drugs. It’s very rarely any kind of illegal substance, or any kind of controlled substance.  I’d say probably the ones that are most frequent in drug related DUIs are Ambien or Xanax. It’s something that a person generally needs and they have a valid prescription for, it just happens to be in their system when they get pulled over.

Many People Wrongly Assume That They Cannot Be Charged with a DUI for Using Prescription Drugs

Every now and then, I do get a marijuana DUI case.  But generally, they are prescription drugs.  Sometimes, I’ll get methamphetamine or something like that but overall those drug DUIs tend to be mostly prescription drugs.  Unfortunately, many people assume that if they have a prescription, then they can’t be convicted of a DUI.  The prescription, though, just gives the permission to have the drug, not necessarily to drive if you’re impaired by the drug.

Prescription Medicines Involved in DUIs Usually Comprise Relaxants, Painkillers and Cough Medicine

Interviewer: What kind of prescriptions are we talking about here?

Matthew Murillo: It can be Xanax, Ambien, usually there’s some kind of sleeping or anxiety related pill.  If somebody needs to calm down a little bit, they’ll take something like that. It could be a muscle relaxant, it can even be cough medicine and cough medicine will register as alcohol.

Prescription Drug DUI Cases Are Just as Hard to Defend as Alcohol Related DUIs

Interviewer: With prescription drug cases, would you say those are easier or harder to defend than alcohol cases or illegal drug cases?

Matthew Murillo: It’s a little bit of both. The alcohol cases, they’re difficult to defend but people generally know what the effects are on the human body. You generally know that the higher your BAC is; the harder it’s going to be for you to function. With drugs, you do get into the issue of the tolerance but it’s not quite the same.  With respect to drug DUIs, drugs are going to affect everybody differently and part of that is going to be the level of concentration of the drugs.  You and I can be taking the same drug at different levels and you may have a lower concentration, or lower dose than I do, but that lower dose could affect you a lot more than my dose affects me.

Drug DUIs Can Occasionally be Harder to Defend by the Fact that It’s Difficult to Prove the Defendant was Not Impaired

That’s more specific to the individual. Probably the drug DUIs for that reason, harder to defend and contradicted impairment just by the fact that it’s more difficult to show a lack of impairment.  The District Attorney looks at whether or not the concentration of that drug in your system was within therapeutic levels. But being within therapeutic levels, although that shows that you’re not abusing the drug, it doesn’t necessarily mean that it didn’t impair your driving.

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