Driving while under the influence of alcohol is regulated by California Vehicle Code 23152(a) VC. In most cases, a driver is said to be intoxicated if their BAC is over 0.8% (the legal limit.) However, if a driver is said to act like they are intoxicated, then they can be charged under 23152(a) VC even if they are under the legal BAC limit. If a driver’s BAC is above the legal limit, they can be charged under both 23152(a) VC and 23152(b) VC driving with excessive BAC. While they are charged under 2 laws, it will only count as one DUI.
Elements of a 23152(a) VC DUI Charge
In order to get a conviction under 23152(a) VC, the prosecutor has to prove the following things:
- The defendant drove a vehicle
- While they were operating a vehicle, they were under the influence of alcohol
In order to receive a DUI conviction under 23152(a) VC, the defendant does not have to have a BAC over 0.08%, the legal limit. For example, if the prosecutor can provide evidence that the driver was driving in a manner that suggests intoxication, they can charge them under 23152(a) VC. A manner that suggests intoxication could include driving erratically by swerving, or when they were pulled over, they had eyes that looked glassy, smelled like alcohol, or walked unsteadily. If they admitted to drinking or failed the field sobriety test, that would also provide enough evidence for a 23152(a) VC conviction.
Once they are arrested for drunk driving, a driver often has to have a blood alcohol test or a breathalyzer at the police station. In some cases, their BAC may be below 0.08%, or their results may not have been processed by the time they are in court. The driver can still be convicted under 23152(a) VC in these circumstances as a high BAC score is not a requirement of the charge.
The law states that for a DUI charge, the person must be influenced by alcohol to the point where they are no longer able to operate with the caution of someone who is sober. In order to pull over a driver suspected of intoxication, the law enforcement officer must have probable cause to believe the driver is in violation of the law. The driver could be speeding, illegal or unsafe lane changes or even their car is in violation. The law enforcement officer cannot pull someone over for a random test or because they have a suspicion they might be drunk.
Law enforcement officers are trained to recognize the symptoms of intoxication when they pull over a driver. If they have reason to believe that the driver is intoxicated, they may ask the driver to take a field sobriety test.
A field sobriety test is designed to show if a driver is intoxicated by putting them through a sequence of tests that check their balance and hand-eye co-ordination. If the results of the test lead the law enforcement officer to believe that the driver is intoxicated, they may arrest the driver or ask them to do a breathalyzer test. If the driver is arrested, they will be charged under 23152(a) VC and may have to do blood or breath testing at the station.
Legal Defenses to DUI Charges
If you are charged under 23152(a) VC, there are a number of legal defenses available to you. Your criminal defense attorney will pick the most applicable one to your circumstances.
It is possible to argue against the effectiveness of a field sobriety test in order to avoid a 23152(a) VC conviction. Certain aspects of field sobriety tests can be failed for reasons other than intoxication, plus they may be difficult for disabled people or people with chronic conditions. The test to stand on one leg, or to walk then turn may be difficult for people wearing shoes that are uncomfortable, or someone may fail it because the law enforcement officer did not give clear instructions. If they were tired, nervous, or the ground was not flat, they may struggle to complete aspects of the field sobriety test. Your criminal defense attorney will have the officer list the ways you did things right in the field sobriety test to show that doing one or two things wrong does not mean you were intoxicated.
Another effective legal defense to a 23152(a) VC charge is to prove that the law enforcement officers did not follow the correct procedures. If they stopped you unlawfully or did not follow the correct procedure when conducting a field sobriety test or when arresting you, then your case may be dismissed. Your criminal defense lawyer will ask you a lot of questions about how you were stopped, what the law enforcement officers said and did during the test and after charging you with 23152(a) VC. Answer these questions truthfully and supply your attorney with any evidence you may have.
Will I Go to Jail If Convicted of 23152(a) VC Driving Under the Influence of Alcohol?
In most cases, first-time offenders of 23152(a) VC will receive probation rather than jail time, but repeat offenders will usually have to serve a jail sentence.
A first-time offender will often receive summary probation for their 23152(a) VC conviction. This is a 3-5 year period of time where they will have to follow all probation conditions. They may have to pay fines, attend DUI courses, not commit any other crimes, and submit to drug and alcohol testing. They are also not allowed to drive with any alcohol in their system. The judge can impose additional requirements like restitution payments or enrolling in AA or NA meetings.
Other Penalties of a 23152(a) VC DUI Charge
In most cases, if you are convicted under 23152(a) VC, you will have your license suspended for a period of time. You can usually avoid license suspension by driving with an ignition interlock device instead if you need your car to get to and from work and probation requirements. In order to avoid having your license suspended or having to drive with an ignition interlock device, you need to win both the criminal case and the DMV administrative hearing.
A first-time offender will have their license suspended for 6 months, and the suspension period increases with every subsequent offense. The second offense will result in a license suspension of 1 or 2 years, and a third offense will result in a license suspension of 2 or 3 years.
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