Telling an officer you smoked hours before a fall-asleep crash

Attorney Answer

Talk to a California criminal defense lawyer before you say anything more about it. A charge of driving under the influence of a drug needs proof that the drug actually impaired your driving to an appreciable degree, not just that you used it at some point; but what you told the officer is evidence, and how much weight it carries is for a lawyer to judge. What happens next depends on whether you were arrested or tested. If you were not, the practical issues are the DMV accident report, the insurance claim and any traffic citation.

What the State would have to prove. Cal. Veh. Code § 23152(f):

(f) It is unlawful for a person who is under the influence of any drug to drive a vehicle.

“Under the influence” is not defined there. The Supreme Court of California has described it as a drug affecting the nervous system, brain or muscles so as to impair, to an appreciable degree, the ability to drive with the caution of a sober, prudent person: People v. Canty, 32 Cal. 4th 1266 (2004).

Testing. Implied consent to a drug blood test arises on an arrest. Cal. Veh. Code § 23612(a)(1)(B):

(B) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.

If you were handed a notice suspending your license, there is a short window to ask the DMV for a hearing. Cal. Veh. Code § 13558(b):

(b) If the person wishes to have a hearing before the effective date of the order of suspension or revocation, the request for a hearing shall be made within 10 days of the receipt of the notice of the order of suspension or revocation.

Falling asleep. A crash after falling asleep can also raise a reckless-driving question. Cal. Veh. Code § 23103(a):

(a) A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

Whether that could apply depends on what you knew about your tiredness before you drove, which is a question for your lawyer.

The DMV report. Separately from any charge, Cal. Veh. Code § 16000(a) requires a report to the DMV within 10 days of a crash causing injury, a death, or more than $1,000 in property damage to any one person. Ask your lawyer how to make it.

What you can do

1. Talk to a California criminal defense lawyer before you say anything more about this to the police, an insurer or anyone else, and do not write out an account of what happened for anyone in the meantime. What you say can be used as evidence.

2. Find every paper you were given: any citation, any notice suspending your license, any tow or property record.

3. If you received a suspension notice, ask your lawyer about the DMV hearing request at once.

4. Ask your lawyer how to give your insurer the notice your policy requires, and how to file the DMV report.

5. Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. A DMV hearing on a suspension notice must be requested within 10 days of receiving the notice (Cal. Veh. Code § 13558(b)), and the accident report is due within 10 days of the crash (§ 16000(a)). Any criminal case runs on the dates in its papers.