DUI Law

1.                  Driving under the influence of alcohol and/or drugs (DUI):

Vehicle Code §23152(a) states "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." 

The prosecution must prove, beyond a reasonable doubt, that an individual was under the influence of alcohol, drugs, or a combination of alcohol and drugs.  A "drug" for purposes of this offense can be an illegal drug, prescribed drug, or an over-the-counter drug.  

In addition, the term "under the influence" is generally described as exhibiting mental and physical impairment to the extent that the individual is unable to exercise the same care and judgment as a reasonable, prudent, and sober driver.  The prosecution will attempt to prove this vague element by presenting evidence concerning the individual's driving pattern (i.e. erratic or reckless driving), the individual's objective physical symptoms (i.e. odor of alcohol, red and watery eyes, slurred speech, and/or unsteady gait), the individual's poor performance on the field sobriety tests, and the individual's incriminating statements.

If the arresting officer suspects the individual was under the influence of drugs (not alcohol), the choice of a blood or urine test will be given.  These cases often involve an examination of the individual by a "drug recognition expert" (DRE) who is trained to identify drug symptomology.

2.         Driving with a .08% or greater blood-alcohol concentration ("per se offense"):

Vehicle Code §23152(b) states "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." 

To obtain a conviction, the prosecution must prove, beyond a reasonable doubt, that the individual drove a vehicle while having the requisite blood-alcohol concentration of .08% or greater.  It is irrelevant if the individual has a high tolerance to alcohol, because the prosecution does not have to prove that the individual was intoxicated, drunk, impaired, or "under the influence."  An individual will also be charged with this offense if he or she takes a breath or blood test with results at or above the legal limit.

It is important to note that an individual is presumed to be under the influence if a breath or blood test taken within 3 hours of driving indicates a blood-alcohol level (BAC) of .08% or greater.  However, the defense attorney may offer evidence to rebut this presumption. 

Other California Vehicle Code and Penal Code Sections related to DUI include the following:

Vehicle Code §23153(a) and (b) - Driving under the influence and causing bodily injury to another person (may be charged as a misdemeanor or felony).

Vehicle Code §23152(d) - Driving a commercial vehicle with a blood alcohol concentration of 0.04% or greater.

Vehicle Code §23103 pursuant to 23103.5 - Reckless driving involving alcohol or drugs or a combination of the two.  Commonly known as a "wet reckless," DUI charges are often "reduced" to this alcohol-related offense upon certain circumstances.  A "wet reckless" counts as a prior offense if charged with a second or subsequent DUI offense within 10 years.

Vehicle Code §23103 - Reckless driving.  Commonly known as a "dry reckless," DUI charges are often "reduced" to this non-alcohol related offense upon certain circumstances.  

Vehicle Code §23109(c) - Engaging in a motor vehicle exhibition of speed on a highway.  Commonly known as an "exhibition of speed" or "speed X," DUI charges are often "reduced" to this non-alcohol related offense upon certain circumstances.  

Vehicle Code §23136 - California's "zero tolerance" law states that it is unlawful for a driver under the age of 21 to drive with a .01% BAC or greater.

Vehicle Code §23140 - Driving while under the age of 21 with a .05% BAC or greater.

Penal Code §192(c)(3) - Vehicular manslaughter.  A DUI involving death through ordinary negligence may be charged as a misdemeanor or felony.

Penal Code §191.5 - Vehicular manslaughter with gross negligence.  A DUI involving death through criminal negligence is filed as a felony.

Penal Code §§187-189 - Second degree murder.  A DUI involving death through an act of implied malice is filed as a felony

Please contact the Law Offices of John H. Sommers for a free and confidential consultation concerning your case and the potential DUI charges that may be filed against you.