California Vehicle Code Section 23152(a)

Driving Under the Influence of Alcohol or Drugs

Our California DUI defense lawyers have local DUI law offices in San Bernardino, Los Angeles, Ventura, and all surrounding Southern California counties.

California Vehicle Code Section 23152 a VC -- Driving Under the Influence

Despite common misperception, the California crime of driving under the influence (more commonly referred to as DUI or "drunk driving") actually encompasses two different offenses:

1. Driving under the influence of alcohol and/or drugs, under California Vehicle Code 23152(a) VC, and
2. Driving with a blood alcohol content of 0.08% or greater, pursuant to California Vehicle Code 23152(b) VC.

Most people arrested for DUI get charged with both crimes. In this article, our California DUI attorneys will provide a comprehensive guide to understanding 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 VC 23152(b).

Topics covered in this article include:

What is Driving Under the Influence -- California Vehicle Code 23152(a)?

How Does the Prosecutor Prove that I was DUI under California Vehicle Code 23152(a)?

Can My Blood Alcohol Content be Used to Prove that I was DUI?

How Do I Defend Against a California DUI?

What are the DUI Penalties and Punishment that I Face if Convicted of California Vehicle Code 23152(a)?

If after reading this article you have additional questions, we invite you to contact us at one of our many Southern California local DUI law offices.

What is Driving Under the Influence -- California Vehicle Code 23152(a)?

According to California Vehicle Code 23152(a), you are DUI 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". With respect to driving under the influence of drugs, the drugs may be illegal, prescription, or even over-the-counter.

Simply put, this means that you are DUI if the alcohol and/or drugs in your system have impaired your mental and physical faculties to the point where you can't drive your car in the same way as someone who is not intoxicated. That being said, the manner in which you drove isn't conclusive of whether you were DUI.it's simply something for the jury to consider when looking at everything as a whole.

How Does the Prosecutor Prove that I was DUI under California Vehicle Code 23152(a)?

The reason that we say that California Vehicle Code 23152(a) is a "subjective" offense is because the entire prosecution team (made up of the prosecutor, the arresting officer, and the prosecutor's "expert" witness, who is typically a criminalist from a local law enforcement agency) will attempt to prove that you were DUI by relying almost entirely on the officer's 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 field sobriety tests (FSTs).

• DUI -- Basic Testimony

The arresting officer will no doubt testify that you were "weaving within your lane", speeding, or otherwise not "driving with the caution characteristic of a sober person". The officer will almost always testify that you displayed the "objective signs of intoxication" which include:

• Red and watery eyes,



• Slurred speech,



• The odor of alcohol emitting from your breath, and



• An "unsteady gait".

The officer will also surely testify that you "failed to perform your FSTs as explained and demonstrated".

• Example: Officer Rick of the California Highway Patrol testified that when he pulled Rick over for speeding in Beverly Hills, Rick 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, Rick might as well throw in the towel, a Beverly Hills DUI lawyer not only expects this testimony but also knows the most effective ways to challenge it and how to additionally offer evidence that supports the defense.

For example, Rick's DUI attorney might elicit the facts that (1) Rick had been working on his house outside in the sun all day, (2) was extremely tired from working, and (3) was nervous and intimidated when he got pulled over, and (4) had been drinking non-alcoholic beer (which produces the same odor as "regular" beer).all facts which would explain Rick's physical appearance and balance.and facts that the "investigating" officer never bothered to ask about.

Can My Blood Alcohol Content be Used to Prove that I was DUI?

Yes. While the two sections that criminalize DUI are related (California Vehicle Code sections 233152(a) and 23152(b)), they are actually quite different. Technically you may be guilty of driving under the influence (per VC 23152(a)) even though your blood alcohol content (BAC) is less than 0.08% (the unlawful threshold set forth under VC 23152(b)). Similarly, you might have a BAC at or above a 0.08% even though you may not be "under the influence" of alcohol.

That being said, the prosecutor is still permitted to introduce evidence of your BAC to convict you of California Vehicle Code 23152(a). 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.

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" (or 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%.

How Do I Defend Against a California DUI?

There are a variety of California DUI defenses that a skilled attorney knows how to employ in fighting a Vehicle Code 23152a charge. These may include:

• Driving-

• Objective signs and symptoms of intoxication-

If the officer testified 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

• Fatigue,



• Allergies,



• The sun,



• Illness, and even



• Non-alcoholic beverages

can account for all of the "objective" signs of alcohol impairment that the officer observed.

*It should be noted that if it is determined that you were DUI, 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.

• Field Sobriety Tests-

If your performance on the FSTs was described as "poor", your California DUI defense lawyer will ask the officer to testify about all of the ways that you correctly performed the field sobriety tests.revealing that the number of things you did right far exceeded the number of things you did wrong. Your attorney will also question (1) the actual tests that were administered, and (2) the manner in which the tests were administered.

Every aspect of your California DUI investigation will be challenged -- from the reason why you were stopped or "pulled over" to the procedures that were followed when collecting and storing your blood or breath sample -- all in a vigorous effort to either reduce the charges or secure an acquittal.

As Darrell York, one of Ventura's top DUI defense attorneys and a former officer from the Glendale Police Department puts it "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".

What are the DUI Penalties and Punishment that I Face if Convicted of California Vehicle Code 23152(a)?

The California DUI sentence you face if convicted of California Vehicle Code 23152(a) VC varies a great deal, depending on whether it's your first or subsequent DUI offense and on whether you're charged with a misdemeanor or a felony DUI. A "typical" misdemeanor California DUI conviction (absent aggravating circumstances) will include:

• Informal probation for three to five years,



• Possible county jail time (depending on whether it's your second or third offense),



• A base fine of about $390 plus court assessments,



• A court-approved DUI school, and



• A six-month California driver's license suspension

It should be noted that even if you're convicted of VC 23152(a) and VC 23152(b), you will only be penalized once. The offenses "merge" for purposes of sentencing, which basically means that you are convicted of and sentenced for the DUI as one crime.

If you would like more information or would like to discuss your case in confidence, we invite you to contact us at one of our conveniently located Southern California local DUI law offices.

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