California Vehicle Code 23152a - DUI Driving Under the Influence
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:
- The defendant drove a vehicle;
AND - 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.