Have You Been Charged with California DUI or Vehicle code (vc) 23152 (a) and (b)?
Elements of DUI
Driving Element of 23512
Generally, the first element is easily satisfied because an officer pulls someone over after watching them drive. However, while the law requires the vehicle move, officers do not have to see the movement, and can infer movement from circumstantial evidence [1].
For example, you can be guilty of drunk driving if you are pulled over while driving, but you can also be guilty of drunk driving if you park on the side of the freeway and an officer finds you behind the wheel, with the keys in the ignition, and the engine is warm—even if your vehicle is not moving at the time.
Under The Influence Element of 23512
“Under the influence” means that your physical or mental abilities are impaired so that you can no longer drive as well as a normally cautious sober person.
The prosecutor can prove this in two ways:
- Under § 23152(b), known as the “per se” DUI, the law presumes you were “under the influence” if your blood alcohol content (“BAC”) is over the legal limit of 0.08%, regardless of whether you actually were under the influence.
- Under § 23152(a), the “subjective” standard, the prosecutor will prove you were under the influence with the arresting officer’s observations about your appearance, behavior, driving pattern, and performance on field sobriety tests (“FST”), as well as any statements you made to the officer. Importantly, you can be convicted of drunk driving even if you were under the legal BAC limit of 0.08% if your behavior shows you were intoxicated and there is any amount of alcohol detected.
For example, if your BAC was 0.04%, you would not be guilty of DUI under § 23152(b). However, you could be found guilty of DUI under § 23152(a) if the officer testified that he saw you swerving while driving, smelled alcohol when he was speaking to you, and you stumbled repeatedly during FSTs.
Penalties for Drunk Driving
First Offense
A first offense DUI is a misdemeanor, with penalties of three to five years of informal probation, from two days to up to six months in county jail, fines from $390 to $1,000, and up to nine months of court-approved drug or alcohol program .
Additionally, the DMV may suspend your driver’s license for up to ten months; however, many first time DUI offenders can obtain a “restricted license” to drive to school and work .
Second DUI
A second offense DUI is also a misdemeanor, with penalties of three to five years of summary probation, from ten days to up to one year in county jail (with a minimum sentence of 96 hours), fines from $390 to $1,000, and an 18 or 30 month court approved DUI program [5].
A second DUI results in a two year license suspension that is not eligible for a restricted license for 12 months [6].
Third DUI
A third offense DUI is a misdemeanor, with penalties of three to five years of informal probation, up to one year in county jail (with a minimum sentence of 120 days), fines from $390 to $1,000, and a 30 month court approved DUI program .
A third DUI results in a three year driver’s license suspension, which cannot be converted to a restricted license for 18 months. The DMV will also designate a third time offender as a “habitual traffic offender.”
Fourth DUI
A fourth offense DUI within a ten year period is usually a felony. A felony DUI is punished by a prison sentence of sixteen months, two years, or three years, as well as $390 to $1,000 in fines, a four year driver’s license suspension, and habitual traffic offender designation . If charged as a misdemeanor, there is a minimum of 180 days in county jail.
Your DUI will also be charged as a felony if you have a prior felony DUI.
Defenses Against DUI Charges
- Challenging probable cause: Nearly all DUI arrests begin with a traffic stop. If the police officer did not have probable cause to arrest you, any evidence obtained as a result of the illegal arrest cannot be used against you at trial, including blood test results. A successful challenge to the probable cause for arrest can often lead to the prosecutor dismissing, or significantly reducing, the charges against you because they don’t believe they can win their case without the blood test results.
- Challenging FST results: Our DUI attorneys can cross-examine the officer who arrested you to challenge their determination that you were under the influence and to show your poor performance on FSTs was not due to intoxication. For example, the tests may have been conducted in poor conditions, such as in a poorly lit area or on an uneven walking surface, or the officer may not have complied with the protocols for administering the test or may have given the instructions in a confusing way.
- Challenging BAC results: BAC results are created by either a Breathalyzer machine or a blood test analysis. If these machines are not properly calibrated and maintained, they can give erroneous readings.
- Rising blood alcohol: To be guilty of DUI, you must be impaired at the time you were driving. “Rising blood alcohol” refers to the fact that your BAC progressively rises after you have a drink until it reaches the maximum level—usually within an hour, depending on the person—and then begins to decline. If your blood alcohol was still rising when you were pulled over, the results from the chemical test would show a higher BAC than the BAC you had when you were driving.
- Medical conditions: Certain medical conditions can cause you to drive poorly, impair your performance on FSTs, mimic the symptoms of intoxication, or inflate your BAC results.
DMV Hearing/APS Hearing
After a DUI arrest, a defendant is faced not only with a criminal trial, but also a DMV hearing.
A DMV hearing is not automatic. The defendant or their attorney must request a hearing within ten days of arrest or there will not be an opportunity to challenge the driver’s license suspension. If a defendant does not request a hearing, the license will be suspended automatically.
This procedure is entirely separate from the criminal case. However, if the defendant prevails in the criminal case after trial, their license will be not be suspended, regardless of the DMV hearing outcome. A dismissal of the criminal case, however, does not affect the DMV suspension.
A DMV hearing, also known as a Driver Safety Administrative Per Se (APS) Hearing, is presided over by a DMV hearing officer, not a judge. The burden of proof is lower than at a criminal trial.
Defendants have the right to be represented by an attorney, who can review and challenge the evidence and present and cross-examine witnesses. Defendants also have the right to testify.
After the hearing, the DMV officer will either “sustain the action,” resulting in suspension of the driver’s license, or “set aside the action,” reversing the suspension.
Many defenses that can be used in the criminal case can also be used during the DMV hearing, such as whether the officer had probable cause to arrest the defendant, the accuracy of the BAC results, and whether the officer followed proper procedure. The DMV hearing can reveal serious weaknesses in the prosecutor’s case, and may provide leverage for negotiations in the criminal case.
Next Steps if You Have Been Charged with Drunk Driving
- Do not talk to police, or anyone else, about your case. If police ask to speak to you about your case, politely but firmly tell them you do not wish to speak with them and you are invoking your right to remain silent and your right to have an attorney present with you during any questioning.
- If you wish to contest your driver’s license suspension, you must request a hearing with the DMV within 10 days of your arrest. If you do not request a hearing, your license will be suspended automatically. Your attorney can represent you during the hearing but even an attorney cannot get you a hearing after 10 days.
- You may choose to start talking Alcoholics Anonymous classes. Many judges order this as a condition of release, and it may help show the judge and district attorney that you have proactively started taking classes.
- The most important step you can take to prevent your drunk driving arrest from becoming a drunk driving conviction is to retain a DUI lawyer to represent you.