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The basic California DUI law, Vehicle Code 23152a makes it misdemeanor to drive
a vehicle when one is "under the influence" of alcohol or drugs or both. VC
23152a literally reads:
"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."
How does California law and Vehicle Code 23152a define "under the influence"?
The exact legal definition is this: "A person is 'under the influence' for
DUI purposes if, as a result of drinking or consuming the alcohol or drug, his
mental or physical abilities are impaired such that he is no longer able to
drive a vehicle with the caution of a sober person, using ordinary care, under
similar circumstances."
How does the court determine whether a DUI suspect was under the influence?
In a prosecution under Vehicle Code 23152a, the state usually attempts to prove the driver's intoxication
through evidence of his/her bad driving, bloodshot eyes, slurred speech, flushed
face, unsteady balance, poor performance on the field sobriety tests, BAC readings
from the blood or breath tests, as well as the arresting officer's opinion that
the driver was under influence. However, the driver is entitled to challenge
all of these assertions, as well as the basic allegation that she was driving
under the influence at all.
Can I be charged with Vehicle Code 23152a even if my BAC came back below
.08?
Yes. In theory, a person can become "under the influence" even with a BAC well
below .08. Some people with greater sensitivity to alcohol become under the
influence at a .07 BAC. Other people at a .05 BAC. We sometimes informally refer
to this as being a "lightweight."
On the other hand, some people with less sensitivity to alcohol don't become
under the influence until they reach a .10 BAC or a .12 BAC. These people have
a greater tolerance to alcohol, and can maintain their sobriety even at higher
BAC levels.
Because there is no particular BAC threshold at which all people in the population
become under the influence, California DUI law establishes a second offense:
Vehicle Code 23152b. This makes it illegal to drive with a .08 or higher BAC,
regardless of whether the person is under the influence. In reality, people
arrested for DUI whose BAC reads .08 or higher are generally charged with both
Vehicle
Code 23152a and 23152b.
Is Vehicle Code 23152a more or less serious than Vehicle Code 23152b?
These two DUI offenses are equally serious. They both carry the same penalties
and consequences. Conviction of either offense puts a DUI on your driving record
and your criminal record. Obviously, therefore, you want to do everything possible
to avoid conviction for either charge. If, however, you get convicted of both
counts, they "merge" for sentencing-meaning this only counts as one DUI conviction,
not two.
Jury Instruction for California Vehicle Code VC 23152a
Below is an abbreviated version of the California Judicial Council's jury instruction
defining Vehicle Code 23152a, the basic DUI charge in California:
The defendant is charged with violating Vehicle Code 23152a: driving under
the influence of an alcoholic beverage or a drug, or under the combined influence
of an alcoholic beverage and a drug. To prove that the defendant is guilty of
this DUI charge, the People must prove that:
1. The defendant drove a vehicle;
AND
2. When he drove, the defendant was under the influence of alcoholic beverage
or a drug, or under the combined influence of an alcoholic beverage and a drug.
A person is under the influence for DUI purposes if, as a result of drinking
or consuming the alcohol or drug, his mental or physical abilities are so impaired
that he 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 DUI. However, it is a factor to be considered, in light
of all the surrounding circumstances, in deciding whether the person was DUI.
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.
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 DUI of an
alcoholic beverage at the time of the alleged offense.
In evaluating any test results in this DUI 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 driving under the influence of alcohol or a drug, then
it is not a defense that something else also impaired his ability to drive.
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