California Vehicle Code Section 23152(A) - Interpretation
In People v. Gutierrez (1977) 72 Cal.App.3d 397, in a misdemeanor prosecution for use of an opiate, the trial court denied the defendant's pretrial motion to suppress evidence of about 17 puncture wounds on his arms, the most recent being two days old.
The officer had asked the defendant to remove his coat after observing two small brown scab marks on his hands and signs of withdrawal, such as wateriness and dilation of the eyes, sniffling, and yawning. (Id. at pp. 400-401.)
On appeal, the defendant argued that the evidence was obtained from an illegal search. the appellate department of the superior court and the Court of Appeal agreed, holding that the fact that a person is observed to be experiencing withdrawal symptoms does not establish reasonable cause to believe that a violation of Health and Safety Code section 11550 (the use or being under the influence of a narcotic) is being committed in the presence of the observer. (Gutierrez, at pp. 401-402.)
In Gutierrez, the court analyzed the term "under the influence" only in regards to Health and Safety Code section 11550, not Vehicle Code section 23152, subdivision (a).
As explained in People v. Enriquez (1996) 42 Cal.App.4th 661,
"The term 'under the influence' differs for the purposes of Vehicle Code section 23152, subdivision (a) and Health and Safety Code section 11550. 'To be "under the influence" within the meaning of the Vehicle Code, the ... drug(s) must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties.
In contrast, "being under the influence" within the meaning of Health and Safety Code section 11550 merely requires that the person be under the influence in any detectable manner. the symptoms of being under the influence within the meaning of that statute are not confined to those commensurate with misbehavior, nor to those which demonstrate impairment of physical or mental ability.'" (People v. Enriquez, supra, 42 Cal.App.4th at p. 665; see also People v. Canty (2004) 32 Cal.4th 1266, 1278-1279.)