DUI

California Vehicle Code Section 23152 States:

 “(a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.

(b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(c) It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

(d) It is unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(e) It is unlawful for a person who is under the influence of any drug to drive a vehicle.

(f) It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.”

Many DUI (driving under the influence) cases may be successfully resolved in the early stages of the proceedings.

For someone who is charged with drunk driving for the first time, an arrest is, of course, frightening and demeaning. A repeat drunk driving arrest is even more serious. Even for 1st time offenders, many California counties now impose mandatory jail time for DUI.

Penalties for a conviction for DUI in California can be extraordinarily punitive.

Penalties include loss of driving privileges, probation, court fees and fines, mandatory alcohol and drug rehabilitation and, increasingly more often, jail time. Other factors, such as causing an accident while driving under the influence of drugs or alcohol, driving with a suspended driver’s license, having a blood alcohol content above a specific reading, or the arrestee having a previous DUI conviction will increase the penalties substantially.

In addition to potential criminal penalties, a DUI arrest or conviction will have an immediate negative impact on driving privileges. In addition, as with any other criminal offense, a conviction for DUI will remain on your criminal history for ever. However, if the accused is represented by competent counsel, many arrests for DUI can be successfully negotiated down to lesser included offenses, such as, alcohol related reckless driving, non-alcohol related reckless driving, and even ‘exhibition of speed’ as an infraction. To determine your eligibility for lesser included offenses when charged with DUI it is imperative that you consult with an experienced attorney.

Ordinarily, an arrest for DUI results in two charges being filed, Count 1, a violation of Vehicle Code Section 23152(a), and Count 2, a violation of Vehicle Code Section 23152(b). Essentially,

Count 1 applies to the arresting officer’s subjective opinion, based on his personal observations at the time of the arrest, that you can not operate a motor vehicle safely because you are under the influence of some substance that negatively affects your judgment and motor skills.

Count 2, on the other hand, relates purely to science and to the question of whether your blood alcohol content, after your breath or blood has been analyzed, was at .08 or greater at the time of your arrest.

DUI WITHOUT INJURY. What the Prosecutor MUST Prove Beyond a Reasonable Doubt

COUNT 1

Jury Instruction 2110. Driving Under the Influence

The defendant is charged [in Count ] with driving under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug] [in violation of Vehicle Code section 23152(a)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant drove a vehicle;

[AND]2. When (he/she) drove, the defendant was under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug].

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.

The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.

[An alcoholic beverage is a liquid or solid material intended to be consumed that contains ethanol. Ethanol is also known as ethyl alcohol, drinking alcohol, or alcohol. [An alcoholic beverage includes<insert type[s] of beverage[s] from Veh. Code, § 109 or Bus. & Prof. Code, § 23004, e.g., wine, beer.]>]

[A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.][If the People have proved beyond a reasonable doubt that the defendant’s blood alcohol level was 0.08 percent or more at the time of the chemical analysis, you may, but are not required to, conclude that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense.][In evaluating any test results in this case, you may consider whether or not the person administering the test or the agency maintaining the testing device followed the regulations of the California Department of Health Services.][It is not a defense that the defendant was legally entitled to use the drug.][If the defendant was under the influence of (an alcoholic beverage/ [and/or] a drug), then it is not a defense that something else also impaired (his/her) ability to drive.]

Jury Instruction 2111. Driving With 0.08 Blood Alcohol

The defendant is charged [in Count ] with driving with a blood alcohol level of 0.08 percent or more [in violation of Vehicle Code section 23152(b)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant drove a vehicle;

[AND]2. When (he/she) drove, the defendant’s blood alcohol level was by 0.08 percent or more weight.

[If the People have proved beyond a reasonable doubt that a sample of the defendant’s (blood/breath) was taken within three hours of the defendant’s [alleged] driving and that a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, you may, but are not required to, conclude that the defendant’s blood alcohol level was 0.08 percent or more at the time of the alleged offense.][In evaluating any test results in this case, you may consider whether or not the person administering the test or the agency maintaining the testing device followed the regulations of the California Department of Health Services.]