There are many names driving under the influence can be called: driving while intoxicated (DWI), drunken driving, drunk driving, operating under the influence, drinking and driving, or impaired driving. All the various terms define the crime of driving a motor vehicle while impaired by alcohol or other drugs including those prescribed by physicians. These offenses and resulting crashes produce an estimated $45 billion in damages every year.
Why is California So Strict on DUI Cases?
It has been repeatedly observed that drunk driving is a sever hazard to public safety. Take, for example, this statement issued by the California Supreme Court:
The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation. This court and the United States Supreme Court have often lamented the monstrous proportions of the problem in graphic terms. In fact, from 1975-1980 there were many more injuries to California residents in alcohol-related traffic accidents than were suffered by the entire Union Army during the Civil War. Given this, our observation that drunken drivers are extremely dangerous people seems almost to understate the horrific risk posed by those who drink and drive.
It is following this analysis that California Legislature has enacted several strict laws outlawing and punishing driving under the influence. Understanding the dire perils presented by the drunken driver is essential because appellate courts construing these provisions have also sought to maximize the scope and application of the DUI laws. For example, the following is illegal while driving in the state of California:
- Drivers under 21 with unsealed alcohol (while driving alone)
- Drivers under 21 with a BAC (blood alcohol concentration of 0.01 or higher
- Drivers under 21 consuming alcohol in any form (including high dosage of cough syrup or prescription drugs)
- Any driver with a BAC of 0.08 or higher
- A driver of a commercial vehicle driving with a BAC of 0.04 or higher
- A driver under 18 driving with ANY measurable BAC
- Repeat offenders with a BAC of .01 or higher
California is strict when it comes to drunk driving laws, especially for offenders under 21 years of age and repeat offenders. It is important to note there is a no tolerance law for drivers less than 18 years of age.
This article will: discuss the statutes that define drunk driving in California, go over various definitions for the involved offenses, provide an overview of the possible penalties, list potential defenses. Basically, by the end of it, you will know more than you ever imagined about DUI charges in California.
The principal statute for drunk driving in California is Vehicle Code §23152(a), (b). These two subdivisions are applicable to cases where the drinking and driving incident does not result in injuries. While Vehicle Code §23153(a), (b) cover incidents where injuries result. A statutory presumption is also set forth dealing with these types of cases.
It is unlawful for any person who has 0.08% or more, by weight, of alcohol in his or her blood to drive a vehicle. It can thus be seen that, although the vast bulk of cases prosecuted in California involve driving under the influence of alcohol, law also bars driving under the influence of drugs, or drugs and alcohol combined. In cases where a person is driving under the influence of drugs alone, he or she cannot be charged with the VC §23152(b) because it refers specifically to blood alcohol content.
VC §23153 mirrors VC §23152, but applies to cases where the DUI caused injury. Of note is the nature of the injury required to trigger this Vehicle Code subdivisions. In contrast with the enhancement provision for personal infliction of great bodily injury, there is NO requirement that the injury rise to the level of great or severe injury: any injury, even a minor injury, will suffice to violate these provisions. On the other hand, the injury must be more than a mere “shaking up,” “fright,” or “minor headache.”
Definition of Relevant Terms
For purposes of a DUI, driving is “volitional movement of a vehicle.” This simply means: to cause motion, steer, or control a vehicle while it is in motion. Therefore, mere control of a vehicle is insufficient to establish “driving.” But, physical control along with movement will suffice, and evidence that a person operated the mechanisms and controls that direct the speed and direction of a vehicle permits the inference of actual physical control. Even a passenger can drive the vehicle if he/she steers it while it is in motion.
For purposes of a DUI, the movement of the vehicle need only be slight, and the vehicle engine need not be on at that time. The area where the vehicle is driven is not important. The statutes cover both driving on public property and private property.
Basically every contraption that moves a person with a motor is considered a vehicle. VC §670 defines a vehicle as: a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively on stationary rails or tracks. Therefore, bicycles are not “vehicles” and are excluded from DUI laws. On the other hand, a moped—a bike with a motor—is a vehicle and subject to DUI statutes. Note: a motorized wheelchair operated by someone incapable of moving as a pedestrian is the sole exception to the rule.
Alcoholic beverage/drug: Other than endorphin or adrenaline naturally generated by a person’s own body, virtually every outside chemical agent that can influence a person’s brain or nervous system counts is an alcoholic beverage or drug for purposes of DUI laws. VC §109 defines alcoholic beverages, while VC §312 defines drug. Whether or not alcohol ingestion occurred is a very straightforward issue. The meaning of whether something ingested is a “drug” is more complicated. Not surprisingly, California courts have considered this issue and decided to interpret the DUI laws broadly to construe the materials at hand as drugs. For example, one court ruled that driving while under the influence of kava—as strong tea-like drink—constituted driving under the influence of a drug. And similarly, insulin was held to be a drug for purposes of the DUI statutes.
Being Under the Influence:
A person is considered under the influence of an alcoholic beverage or drug or combination when, as a result of consuming such items his/her mental and physical abilities are impaired. This means that he/she no longer has the ability to drive a vehicle with the caution characteristic of a sober person or ordinary prudence under the same or similar circumstance.
It is important to note that there is a difference between being under the influence under the Vehicle Code versus under the Health & Safety Code. DUI law is under the Vehicle Code.
To prove that a defendant violated the pertinent statutes for DUI, the prosecution must establish that the defendant drive while his or her BAC was 0.08 or higher. Blood alcohol content is measured by the grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
The ratio of breath-alcohol concentration to blood alcohol concentration, known as “partition ratio” has been interpreted very expansively, in keeping with the danger presented by drunk drivers. The California Supreme Court has ruled that, even if an individual’s actual concentration of alcohol is in his or her blood was less than 0.08%, but the breath test machine read 0.08% or higher due to the machine’s built-in partition ratio, the person would be guilty.
Studies show that a high BAC increases the risk of accidents whereas it is not clear if a BAC of 0.01%-0. 05% slightly increases or decreases the risk. One study suggests that already a BAC of 0.04-0.05% would slightly increase the risk whereas some studies suggest that a BAC of 0.01-0.04% would slightly lower the risk, possibly due to the drivers being more cautious.
Field Sobriety Test:
A police officer typically performs a three-part field sobriety test after a traffic stop where there is suspicion that the motorist may be drunk or otherwise impaired. These tests allow an officer to observe a suspect's balance, physical ability, attention level, or other factors that the officer may use to determine whether the suspect is driving under the influence. This usually precedes a Breathalyzer Test.
What Possible Penalties I’m Looking At?
DUI convictions that result in injuring someone are, of course, more severely punished than those that do not. The main difference is that the DUI that results in injury can be punished as a felony even if the defendant has no priors.
Hence, when a person violated either VC §23153(a), (b), for the first time, the crime can be punished as a felony or misdemeanor—at the court’s discretion. The felony conviction can result in up to 3 years in state prison, while the misdemeanor conviction can result in up to 1 year in jail. If probation is granted, the judge must sentence the defendant to at least five days in jail and a drug education program. If probation is not granted, the minimum punishment is 90 days in jail. The defendant’s driver’s license must be suspended for all purposes for at least a year.
But when defendant violates VC §23153 (a), (b) with priors, increased punishment is set forth—depending on the priors. Further, if the defendant is sentenced to prison, punishment is increased when more than one victim is injured in the accident. An extra year in prison is added per victim, up to three additional years.
On a side note insurance may be automatically declared invalid, i.e. the drunk driver is fully responsible for damages. Within the American system, citation for driving under the influence also causes a major spike in car insurance premiums.
Your Rights As A Driver
A police officer in the United States must have probable cause to make an arrest for driving under the influence. In establishing probable cause for a DUI arrest officers frequently consider the suspect's performance of Standardized Field Sobriety Tests.
Steps: The first test typically administered is the Horizontal Gaze Nystagmus test. When this test is conducted the officer is looking for the involuntary jerking of the suspect's eyes as they gaze toward the side. The officers check for three separate clues in each eye. The clues for each eye are: lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation and onset of nystagmus prior to 45 degrees. They also then check for vertical nystagmus. Another test that may administered is the Walk and Turn (WAT) test. This test is a divided attention test and also measures balance. It requires the suspect to walk heel-to-toe on a line along with other instructions. There are eight clues that the officer is looking for when conducting this test. The officer looks for the following clues: cannot keep balance during instructions, starts the test before the instructions are finished, stops while walking to steady themself, misses heel-to-toe, steps off the line, uses arms to balance, makes an improper turn and takes the incorrect number of steps. The other standardized test is the One Leg Stand (OLS). The OLS test requires the suspect to stand on one leg for 30 seconds and also measures balance, coordination, and similar to the WAT test, divides the suspect's attention. The officer is looking for any of the four possible clues: Sways while balancing, uses arms for balance, hopping and puts their foot down.
Are There Alternative Sentences?
Yes. Alternative sentencing options are alternatives to a county jail or California State Prison sentence.
When imposed in connection with a California DUI, these sentencing alternatives may include:
- Cal-Trans roadside work
- Community service
- Electronic monitoring or house arrest
- Residence in a sober-living environment
- Incarceration in a private or city jail
Your Best Defense
A DUI is a serious charge, and convictions may result in several years in prison, huge fines, or both incarceration and fines. DUI charges are highly technical and require a deep knowledge in the area. A lawyer who practices this specialized area of criminal defense will review the facts of your case, explain your options, and advise you of the possible consequences. But for the best possible defense, you should speak with a local attorney familiar in the specific judicial system your case is presented before. Local criminal defense attorneys know how local judges and local prosecutors work, and can use that knowledge to better represent you. For more information, contact Vik Monder at the Monder Law Group, PC.