California DUI law is complex and confusing. We're here to help you make sense of it. We're a statewide law firm of former DUI enforcement officers and former DUI prosecutors...now turned defense lawyers. We bring decades of experience investigating, prosecuting and defending drunk driving cases.
Below, our California DUI defense attorneys address1 the following:
This photograph was originally taken by Flickr user eviltomthai/Tom Thai and the original photo can be found here.
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Driving Under the Influence of Drugs; Driving Under the Influence of Marijuana; Driving Under the Influence of Vicodin; Driving Under the Influence of Ambien or Lunesta; Vehicle Code 23152(b) Driving with a Blood Alcohol Content of 0.08% or Greater; California DUI Field Sobriety Tests (FSTs); Horizontal Gaze Nystagmus (HGN) FST; Finger to Nose FST; One-Leg Stand FST; DUI causing Injury; California DUI Penalties; DMV DUI Hearings; Travel to Canada with a California DUI; DUIs and their Affect on Car Insurance; and DUI Plea Bargain Negotiations.
First, let's start off with the basics.
Most people who get arrested for DUI in California ultimately get charged with two separate misdemeanor offenses:
- driving under the influence of alcohol and/or drugs, under California Vehicle Code 23152(a) VC, and
- driving with a blood alcohol content of 0.08% or greater, pursuant to California Vehicle Code 23152(b) VC.2
This article focuses on the "subjective" California misdemeanor offense of DUI per California Vehicle Code 23152(a) VC. For a more detailed explanation of driving under the influence with a blood alcohol content (BAC) of 0.08% or greater, please review our article on Vehicle Code 23152(b) VC.
Proving a DUI case
In order to convict you of driving under the influence, the prosecutor must prove the following two facts (otherwise known as "elements of the crime"):
- that you drove a motor vehicle, and
- that you were under the influence of alcohol and/or drugs at the time you drove.
And while these elements may seem pretty straight forward, they actually require further explanation. Let's take a closer look at some of these terms to gain a better understanding of their legal definitions.
If an officer sees you driving, then the first element is obviously satisfied. But what about when that's not the case? What if you were involved in an accident and the police only arrived on-scene after the fact? What if you were asleep in the car? What if the motor is running but you haven't "moved" the car?
These are the types of DUI scenarios that present themselves daily in Vehicle Code 23152(a) cases. It's not enough for the prosecutor to prove that you were under the influence...he/she must prove that you were driving under the influence.
California courts have held that some movement of the vehicle is required in order to constitute driving. And courts have further held that this movement may be proven by circumstantial evidence.3
"Circumstantial evidence" is any evidence that doesn't directly point to guilt, but can be inferred from the surrounding circumstances.
Example: Circumstantial evidence of driving was established when the defendant was found asleep in his car, obstructing the roadway. The defendant was the only person in the car, the car was not in a location where a car would normally be "parked", and...because the car didn't "magically" appear there...someone must have driven it to that location. Since there was no evidence suggesting that anyone else drove the car to that location...and no reason to believe that it wasn't the defendant who did so...the jury found that the defendant had been driving and so convicted him of DUI.4
Under the influence
According to California Vehicle Code 23152(a) VC, you are "under the influence" when, as a result of drinking alcohol and/or taking drugs,
"your physical or mental abilities are impaired to such a degree that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances".5
And, with respect to driving under the influence of drugs, it doesn't matter whether the drugs are
- illegal (as in the case of driving under the influence of marijuana),
- prescription (as in the case of driving under the influence of Vicodin), or
- even over-the-counter (as is the case of driving under the influence of diphenhydramine).
Simply put, this means that you are DUI if the alcohol and/or drugs in your system have impaired your judgment to the point where you can't drive your car in the same way as someone who is not intoxicated.
That said, the manner in which you drove isn't conclusive of whether you were DUI but it is merely a factor that the jury can consider when looking at everything as a whole.6
The reason that we say that California Vehicle Code 23152(a) is a "subjective" offense is because the entire prosecution team, which includes the
- arresting officer, and
- prosecutor's "expert" witness, (who is typically a forensic toxicologist from a local law enforcement agency)
will attempt to prove that you were DUI by relying mostly on the officer's personal observations.
The prosecution's case against you begins when the so-called "investigating" officer testifies about everything that you did "wrong" in an effort to prove that you didn't have the mental or physical ability to drive your car safely.
This testimony will include observations about your driving pattern, your physical appearance, and your performance on the California DUI field sobriety tests (FSTs).
The officer's testimony
The arresting officer will typically testify that you were
- weaving or swerving,
- driving erratically, or otherwise
- unable to drive "with the caution characteristic of a sober person".
In Vehicle Code 23152(a) cases, the officer will almost always testify that you displayed the "objective signs of intoxication" which include (but are not limited to):
- red and watery eyes,
- slurred speech,
- the odor of alcohol emitting from your breath, and
- an "unsteady gait" (or wobbliness on your feet).
The officer will also likely testify that you "failed to perform your field sobriety tests as explained and demonstrated".
Example: In the case of People v. Smith, the investigating officer testifies that when he pulled Smith over for speeding, Smith had red/watery eyes, smelled of alcohol, and was unsteady while performing his field sobriety tests.
Although it may seem like once the jury hears this testimony, Smith might as well throw in the towel, a skilled California DUI defense attorney not only expects this testimony but also knows the most effective ways to challenge it.
For example, in a Vehicle Code 23152(a) case, Smith's lawyer might elicit testimony that
All of these factors could legitimately explain Smith's physical appearance and poor balance. And all of these factors were probably never even considered by the so-called "investigating" officer.
- Smith had been working on his house outside in the sun all day,
- he was extremely tired from working,
- he was nervous and intimidated when he got pulled over, and
- he had drank some beer, which accounts for the odor of alcohol, but had not drank enough to put him "under the influence"
The effect of breath or blood test results
Even though the two sections that criminalize DUI are related...that is, Vehicle Code sections 233152(a) and 23152(b) VC...they are actually quite different.
Technically you may be guilty of driving under the influence (per VC 23152(a)) even though your blood alcohol concentration is less than 0.08% (the unlawful threshold set forth under VC 23152(b)). Similarly, you might have a blood alcohol concentration (BAC) at or above a 0.08% even though you may not be "under the influence" of alcohol.
That said, the prosecutor is usually permitted to introduce evidence of your BAC to support its case that you were driving under the influence. The instructions that are read to the jury include a passage that states that if your BAC tested at or above a 0.08%, the jury may (but is not required to) infer that you were under the influence.7
This is a major point of contention that your California drunk driving attorney will rebut, typically through the testimony of a defense expert witness. "Tolerance"...which is your personal sensitivity to alcohol...plays a large role in determining at what point you are "under the influence"
Although most California law enforcement agencies testify that everyone is impaired at 0.08% (some will testify that they believe the level is as low as 0.05%), there are other experts who believe that the level is considerably higher -- even as high as 0.12%.
There are a variety of California DUI defenses to Vehicle Code 23152(a) VC California's driving under the influence law that your lawyer could argue on your behalf. The most common include (but are not limited to):
Alcohol may not be the reason for your driving issues
If your driving was called into question, your California DUI lawyer will be sure to address the fact that sober people are responsible for the majority of traffic violations and accidents. Also, there may be non-alcohol related explanations for your driving miscues, such as being lost or momentarily distracted.
Objective signs and symptoms of intoxication can be caused by a number of factors
In a Vehicle Code 23152(a) case, if the officer testifies that you displayed physical signs and symptoms that were consistent with someone who had been drinking, your California DUI defense attorney will elicit testimony that
- the sun,
- illness, and even
- non-alcoholic beverages
can account for all of the "objective" signs of alcohol impairment that the officer observed.
However, if it is determined that you were intoxicated...and the above symptoms (such as fatigue or an illness like diabetes or epilepsy) simply contributed to your impairment...they will not serve as a defense to DUI.8
Field sobriety tests don't accurately measure impairment
If your performance on the FSTs is described as "poor"...which will almost always be the case...your DUI defense lawyer will ask the officer to testify about all of the ways that you correctly performed the field sobriety tests.
This line of questions is designed to show the jury that the number of things you did right far exceeded the number of things you did wrong. Your attorney will also challenge
- the validity of the specific tests that were administered (such as the the Horizontal Gaze Nystagmus (HGN) FST, the finger to nose FST, and/or the one-leg stand FST), and
- the manner in which the tests were administered.
The police didn't follow proper procedures
Every aspect of your California DUI investigation will be challenged. Your DUI attorney will call into question
- whether the officer had the necessary probable cause to arrest you (or even the required reasonable suspicion to stop you in the first place),9
- the procedures used to collect and store any blood or breath samples under Title 17 of the California Code of Regulation (California Title 17 violations could affect the outcome of your DUI case), and10
- whether the officer engaged in any acts of police misconduct which could override any alleged wrongdoing on your part.11
As Ventura DUI defense attorney Darrell York12 explains, "I've seen countless individuals charged with DUI...DUIs where everything points to guilt...walk away clean due to shoddy police work, improperly maintained breath or blood testing instruments, and the skill of an experienced California DUI defense lawyer".
The penalties imposed in connection with violations of Vehicle Code 23152(a) VC California's driving under the influence law depend on whether you are convicted of your first, second, third, or subsequent offense.
Most first, second, and third-time DUIs are misdemeanors. Fourth and subsequent DUIs within a ten-year period are typically filed as felony drunk driving charges in California. Being involved in a DUI causing injury can also influence this determination.
California DUI penalties for misdemeanor violations usually include (but are not necessarily limited to) the following:
- informal probation for three to five years,
- up to one year in a county jail (depending on whether it's your second or third offense),
- a base fine of about $390 plus court assessments,13
- participation in a court-approved California DUI school,14
- a minimum six-month California driver's license suspension15 (unless you initiate and win a California DMV DUI hearing),16
- restrictions on your ability to travel to Canada,17 and
- insurance repercussions, as California DUIs have an effect on car insurance policies.18
Additionally, aggravating factors such as
- being charged with a California DUI speeding enhancement,19
- driving under the influence with a child in the car20 (which could alternatively be filed under Penal Code 273a California's child endangerment law),21 or
- having a blood alcohol concentration of 0.15% or above
are all factors that could increase your DUI penalties.
DUI plea bargaining
Most Vehicle Code 23152(a) VC cases do not go to trial. This means that many cases are resolved during DUI plea bargaining negotiations. Plea bargains are useful tools for both the defense and the prosecution. A plea bargain allows the prosecutor to obtain a conviction and allows you to plead guilty to a reduced charge, and/or a lesser sentence.
The most frequently reduced driving under the influence charges include
- Vehicle Code 23103 per 23103.5 VC California's "wet reckless" law,22
- Vehicle Code 23103 VC California's "dry reckless" law, and23
- Vehicle Code 23109(c) VC California's "exhibition of speed" law.24
Finally, it's important to understand that even if you're convicted of Vehicle Code 23152(a) and VC 23152(b) VC, you will only be penalized once. The offenses "merge" for purposes of sentencing, which means that you are convicted of and sentenced for the DUI as one crime.25
Call us for help...
If you or loved one is charged with Vehicle Code 23152(a) driving under the influence and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada DUI defense attorneys are available to answer any questions relating to Nevada's drunk driving laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.26
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1Our California DUI defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2Vehicle Code 23152 California's Driving under the Influence Law. ("(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.") Most people arrested for DUI get charged with both crimes. The exception involves people who are suspected of exclusively driving under the influence of drugs. When this is the case, only Vehicle Code 23152(a) applies.
3People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 8. ("With regard to the offense of driving under the influence of an alcoholic beverage or drug (Vehicle Code � 23152, subd. (a) [California's driving under the influence" law], a "slight movement" of the vehicle in the officer's presence has been a determinative factor in concluding whether or not a defendant was "driving" in the presence of the officer. ( Henslee v. DMV (1985) 168 Cal.App.3d 445, 450-453 [214 Cal.Rptr. 249]; see also People v. Engleman (1981) 116 Cal.App.3d Supp. 14, 18-20 [172 Cal.Rptr. 474].) In other words, a "slight movement" of the vehicle constitutes direct evidence that the vehicle was being "driven." (Cf. People v. Kelley, supra., 27 Cal.App.2d Supp. 771, 772-774.)...On the other hand, where the sufficiency of the evidence to support the judgment is in question, as contrasted with the validity of a defendant's arrest,FN4 it is clear that the existence of evidence establishing a "slight movement" of the vehicle does not present a problem.FN5 In the absence of such direct evidence of "driving", the element of "driving" may nonetheless be established at trial through circumstantial evidence...")
4Facts based on People v. Wilson, above.
5California Jury Instructions, Criminal. CALJIC 16.831 Alcohol or Drug Influenced Driving- Vehicle Code 23152(a) "Under the Influence"-Defined. ("A person is [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] when as a result of [drinking such alcoholic beverage] [and] [using a drug] [his] [her] physical or mental abilities are impaired to such a degree that [he] [she] no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.")
6CALJIC 16.832 Alcoholic or Drug Influenced Driving under Vehicle Code 23152(a) California's Driving Under the Influence law. ("The manner in which a vehicle is being driven is not sufficient in itself to establish that the driver of the vehicle either is or is not [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] [addicted to the use of a drug]. However, the manner in which the vehicle is being driven is a factor to be considered in light of all the proved surrounding circumstances in deciding whether the person operating the vehicle was or was not [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] [addicted to the use of a drug].")
7CALJIC 12.61 Vehicle Code 23152(a) Driving Under the Influence-Inference of Intoxication. ("If the evidence establishes beyond a reasonable doubt that at the time of the chemical analysis of the defendant's blood, breath or urine, there was 0.08 percent or more by weight of alcohol in the defendant's blood, you may, but are not required to, infer that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense.")
8CALJIC 16.831 Alcohol or Drug Influenced Driving-"Under the Influence"-Defined. ("[If it is established that a person is driving a vehicle [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug], it is no defense that there was some other cause which also tended to impair [his] [her] ability to drive with the required caution.]")
9Probable cause to arrest and reasonable suspicion to detain are discussed in the seminal U.S. Supreme Court case Terry v. Ohio (1968) 392 U.S. 1.
10Title 17 of the California Code of Regulations regulates all evidentiary procedures relating to California blood and breath testing, which is why we say that California Title 17 violations could affect the outcome of your DUI case.
11Police misconduct ranges from excessive force to perjury. When an officer doesn't follow proper police protocol, lies, or exaggerates in the police report, or in any way violates your civil rights, police misconduct may override your criminal conduct.
12Ventura DUI defense attorney Darrell York uses his former experience as a Glendale Police Officer to represent clients accused of violating California's DUI laws at the Ventura Hall of Justice, the Van Nuys courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Lancaster courthouse, the San Fernando courthouse, and the Criminal Courts Building.
13See Vehicle Code sections 23536 - 23548 for California DUI penalties for misdemeanor offenses.
14California DUI schools are regulated by Health and Safety Code sections 11836 et seq.
15License suspensions required for DUI cases are regulated by California Vehicle code sections 13350 et seq.
16California DMV DUI hearings must be requested within ten-days of your DUI arrest. For more information about DMV DUI hearings, please review our articles on DMV hearings.
17Canadian Immigration and Refugee Protection Act (“IRPA”) 36 [Canadian criminal inadmissibility, including for a DUI conviction]. (“(2) A foreign national is inadmissible on grounds of criminality for . . . (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament; . . . .”)
See also Canadian Criminal Code (“CC”) 253 [Canada's DUI law]. (“(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.”)
18California DUIs almost always have an effect on car insurance policies. However, when your insurance company can take action against your policy is strictly limited. For more information, please review our article on DUI and Car Insurance.
19Vehicle Code 23582 VC California's DUI speeding enhancement. ("(a) Any person who drives a vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, and in a manner prohibited by Section 23103 during the commission of a violation of [Vehicle Code] Section 23152 [California's driving under the influence law] or 23153 shall, in addition to the punishment prescribed for that person upon conviction of a violation of Section 23152 or 23153, be punished by an additional and consecutive term of 60 days in the county jail.")
20California Vehicle Code 23572 VC -- Minor in car; enhanced punishment. ("(a) If any person is convicted of a violation of Section 23152 and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed: (1) If the person is convicted of a violation of Section 23152 punishable under Section 23536, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part of which shall be stayed. (2) If a person is convicted of a violation of Section 23152 punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed. (3) If a person is convicted of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed. (4) If a person is convicted of a violation of Section 23152 which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed. (b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven. (c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident.")
21Penal Code 273a California's child endangerment law. ("(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.")
22Vehicle Code 23103 per 23103.5 VC California's "wet reckless" law. ("(a) If the prosecution agrees to a plea of guilty or nolo contendere to a charge of a violation of Section 23103 in satisfaction of, or as a substitute for, an original charge of a violation of [Vehicle Code] Section 23152 [California's driving under the influence law], the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of an alcoholic beverage or the ingestion or administration of a drug by the defendant in connection with the offense.")
23Vehicle Code 23103 VC California's "dry reckless" law. ("(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.")
24Vehicle Code 23109(c) VC California's "exhibition of speed" law. ("(c) A person shall not engage in a motor vehicle exhibition of speed on a highway, and a person shall not aid or abet in a motor vehicle exhibition of speed on any highway.")
25California Penal Code 654 -- Offenses punishable in different ways by different provisions; double jeopardy; denial of probation. ("(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.")
26Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's DUI laws. Their Nevada law offices are located in Reno and Las Vegas.