Driving under the influence is one of the most common misdemeanor offenses seen. Many people wrongly believe that having drunk and drove means that nothing can be done for their case. This is not true! There are a lot of moving parts to defending a DUI and it is important to remember that regardless of the circumstances, you are presumed innocent until proven guilty! Do not give up your right to a vigorous defense! Even if the elements of the crime are met, many aspects of sentencing can be negotiated and modified. As such, it is important to consult an attorney to explore the various defenses.
Here at CAOC, we believe that knowledge is power. So, we want to arm you with knowledge of the different kinds of DUI offenses.
Let’s begin by talking about the most common type of DUI: offenses involving the use of alcohol.
Driving while under the influence of alcohol is prosecuted under 2 statutes: California Vehicle Code section 23152(a) and/or California Vehicle Code section 23152(b).
Vehicle Code section 23152(a) essentially states that you are guilty of driving under the influence of alcohol if you: 1) have alcohol in your system, 2) drove a vehicle, and 3) were impaired at the time of driving. This is what we like to call the “impairment” count because as you may have noticed, the statute contains no threshold for impairment. This means that you can be convicted of the (a) count even if your Blood Alcohol Content (BAC) is only 0.01%! The fact that there is no threshold for impairment often catches people by surprise. After all, we’ve all heard about the magical number of 0.08%! Well, that is where the (b) count comes in.
Vehicle Code section 23152(b) is unconcerned about whether a person is impaired; rather, the statute presumes that an individual is “under the influence” if the person’s BAC is over 0.08%. This means that no matter how well you hold your alcohol, you can be convicted of the (b) count if your BAC is over 0.08%!
Here’s one way to understand how these two statutes synergize: the (a) count prosecutes the “light weights”; even if your BAC was only a 0.01%, if your ability to drive is impaired, you are engaging in a DUI. The (b) count, on the other hand, prosecutes those who hold their alcohol well; the state does not care how high your alcohol tolerance is, even if you are functioning perfectly well, if your BAC is over 0.08%, the law will presume that your ability to drive is impaired.
The above two statutes work conjunctively to prosecute drivers who are under the influence of alcohol. But, Alcohol is not the only substance that can lead to a DUI. In California, driving under the influence of any drug can also be a DUI.
Under California Vehicle Code section 23152(e), a driver who drives while under the influence of any drug can be convicted of a DUI. Note here that the statute’s language uses the words “any drug” and not “any controlled substance.” This means that one does not need to be under the influence of a prohibited narcotic (such as methamphetamine or cocaine) to be in violation of this statute. Indeed, other legal drugs such as Vicodin or Lunesta can also cause you to run afoul of this statute.
Understanding what substances can qualify for a DUI is only the first step; the law also defines what it means to be under the influence.
The first thing to understand is that “under the influence” does not mean “drunk.” Quite the contrary, the prosecution is not required to prove that you were “drunk.” Rather, they only have to prove that you were “under the influence” of alcohol, drugs, or a combination of alcohol and drugs. To that end, the law says that a person is “under the influence” if he or she is unable to operate a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. So how exactly do they establish impairment?
Evidence of impairment usually consists of your driving pattern, statements, demeanor, and your performance on FST’s (Field Sobriety Tests). Some of the common things the prosecution will look for include: were you weaving, speeding, swerving, braking excessively, or even drifting in your lane? Were you able to touch your nose, follow directions, walk a straight line, or say the alphabet without singing it or rhyming? An experienced criminal defense attorney can challenge this evidence in court.
The next question is what does it mean to be “driving.”
What constitutes driving is defined by case law. In California, driving is operating a vehicle that causes “volitional movement.” This means that even a “slight movement” is sufficient to constitute “driving.” By that same token, without volitional movement, merely having the engine on DOES NOT constitute driving.
That was a lot of information…so here is an abridged version: To be convicted of a DUI, the following must be proved:
1. The defendant drove –caused volitional movement- of a vehicle
2. The defendant either:
1. Is impaired by either alcohol or drugs, meaning he or she is unable to exercise the same level of caution as would a sober person under similar circumstances; or
2. Has a BAC over 0.08%.
It is important to note that the above is merely an overview of the most commonly seen Californian DUI laws. Other more specific variations exist. For example, juvenile DUI’s, DUI’s involving a commercial vehicle, etc.
Additional Important DUI Information:
If you are arrested for DUI, the DMV will automatically suspend your driver’s license unless you schedule a DMV Hearing within 10 days of your arrest. Many people see that their court date isn’t until 6 weeks after the arrest and accidentally miss the deadline to schedule the DMV hearing. Here at CAOC, we understand that the privilege to drive is just as important to you as your criminal case. As such, CAOC will help you set up the DMV hearing and fight to save your driver’s license. Call on Thomas Wang for a DUI attorney in San Diego you can trust.