Driving Under the Influence-DUI
Driving while under the influence of alcohol, Driving Under the Influence or "DUI", as it is commonly referred to, is a serious offense. It is illegal to drive under the influence of alcohol and/or drugs. One can be charged with driving under the influence of drugs (illicit or prescription) or alcohol in your system or both. A DUI can be charged as a misdemeanor or a felony. Felony Driving under the influence charges are brought, when there is serious injury caused (Vehicle Code Section 23153), and/or when an individual is charged with a 4th offense of driving under the influence within a 10 year period (Vehicle Code Section 23550). VC 23550.5 (Felony Drunk Driving) When a person has been charged with driving under the influence and has a prior felony conviction within ten (10) years, this new offense is automatically charged as a felony.
VEHICLE CODE SECTIONS
VC 23152(a)(b) represents a standard non-injury charge of driving under the influence. Offenses under these code sections are typically charged as misdemeanors and can be charged alternatively under two different sections
VEHICLE CODE SECTION 23152(A)/VEHICLE CODE SECTION 23152(B). VEHICLE CODE SECTION 23152(a) (IT IS ILLEGAL TO DRIVER A VEHICLE UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS).
This code section requires evidence of alcohol and/or drug impairment in order to obtain a conviction. The test for impairment is; "a person is under the influence if, as a result of (drinking [or consuming] an alcoholic beverage [and/or] taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances".
In a refusal case, (i.e., no chemical test taken and thus no results) the only charge available to the prosecution is VC 23152(a). There are difficult cases to prove on the basis of evidence of impairment alone. The individual can be charged with this code section while having a blood alcohol level of below .08% and above .04% (i.e., BAC of .05, .06, or .07) and or having drugs in your system or a combination of both.
VC 23152(b) "Per Se Statute it is illegal to drive a vehicle with a blood alcohol content of .08 percent or more." This is the driving under the influence statute which most people understand as the law. This code section is alcohol specific and only a minimum blood alcohol level of .08% need be proven for a conviction. The law presumes all drivers to be under the influence, if the blood alcohol level was .08% or more at the time of driving.
VC 23152( c ) "It is unlawful for any person who is addicted to the use of any drug to drive a vehicle."
VC 23152(d) "It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle..."
VC 23153 (DRIVING UNDER THE INFLUENCE CAUSING INJURY)
This offense is a wobbler and may be charged as a misdemeanor or felony depending on the severity of the injury caused by the drunk driver. The consequences for a violation of this statute are far more severe than non-injury driving under the influence charges. Generally, punishment can include substantial jail sentences or state prison. A violation of this code section will be charged as a felony if the injuries caused are serious (i.e., lacerations, cuts, broken bones, and/or loss of consciousness). If the injuries are severe (great bodily injury) then the prosecution can charge the offense as a "strike" under the Three (3) Strikes Law. Great bodily injury or GBI is alleged as an enhancement and must be admitted by the Defendant to qualify as a strike.
VC 23136 (Under 21 Juvenile Driving Under the Influence) Zero Tolerance .01% blood alcohol content or higher. An Administrative Per Se Hearing will result in a one (1) year suspension of your license.
VC 23140 Involves a person that is under 21 and driving with a .05% or high blood alcohol level. This is an infraction, but carries two points on your driving records, if convicted.
NOTICE: This general information sheet is not intended to guide you in the defenses of your particular case or provide legal advice as to your particular case. Each case is different. For legal advice on the particulars of your case, you should consult an attorney. To speak to an experienced attorney please contact Roberts & Elliott, LLP at (408) 275-9800