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CALIFORNIA DRUNK DRIVING CHARGES

CALIFORNIA DRUNK DRIVING CHARGES

California Driving Under the Influence Charges 

CVC § 23152  is the non-injury drunk driving statute.

Non-injury drunk driving is usually referred to as misdemeanor drunk driving, though this term can be misleading.

Drunk driving with injury (CVC § 23153), sometimes called felony drunk driving, can also be charged as a misdemeanor per CVC § 23554, and a certain number or type of prior convictions can be used to create a felony wobbler offense under CVC §§ 23550 or 23550.5, chargeable as either a felony or a misdemeanor.

Subdivision (a) of § 23152  makes it illegal to drive a vehicle while under the influence of alcohol.

Subdivision (b), the “per se” statute, makes it illegal to drive a vehicle with a blood and/or breath alcohol concentration (BAC or BrAC) of 0.08% or more.

Subdivision (b) of § 23152  was first added to the Vehicle Code in 1982. The breath alcohol language was added by the California Supreme Court.

Proving a Driving Under the Influence Charge

To convict a defendant of the driving under the influence charge, the prosecutor must prove the following elements:

That the person drove a motor vehicle; and

That the person was under the influence of alcohol and/or drugs at the time of driving.

Proving Driving With BAC or BrAC of 0.08% or More

To convict a defendant of the driving with a blood or breath alcohol level of 0.08% or greater charge, the prosecutor must prove the following elements:

That the person drove a motor vehicle; and

That the person drove with a BAC or BrAc of 0.08% or more at the time of driving.

Difference Between CVC § 23152(a) & CVC § 23152(b)

The difference between subdivisions (a) and (b) of CVC § 23152 is that evidence of alcohol or drug impairment is necessary for a conviction of violating subdivision (a), whereas under subdivision (b), only a minimum level blood or breath alcohol concentration need be proven.

In cases where there is no chemical test result, only (a) is charged because alcohol level is difficult to determine on the basis of impairment evidence alone.

Since some people can be under the influence at alcohol levels as low as 0.05%, chemical test evidence indicating a blood or breath alcohol level of 0.08% or more would probably be necessary for there to be legally sufficient evidence of violation of subdivision (b).

Felony Drunk Driving Charges 

CVC § 23153  is the drunk driving with injury statute. It is sometimes referred to as felony drunk driving, but that name is misleading.

The offense may also be charged as a misdemeanor (CVC § 23554), and a certain number or type of prior convictions can create a felony wobbler offense, which are chargeable as either a felony or a misdemeanor under CVC § 23550 or CVC § 23550.5.

DUI Vehicular Manslaughter 

Vehicular manslaughter while intoxicated is divided into two categories: P.C. § 191.5(a) (with gross negligence) and P.C. § 191.5(b) (without gross negligence).

Penal Code § 191.5 (a) 

P.C. § 191.5(a) (Vehicular Manslaughter While Intoxicated With Gross Negligence) has the following elements:

Unlawful killing of a human being.

Without malice.

In the driving.

Of a Vehicle.

In violation of CVC §§ 23140, 23152 or 23153.

Proximately caused by the commission of,

An unlawful act, not amounting to felony

A lawful act which might produce death, in an unlawful manner,

With gross negligence.

A violation of this section is subject to a misdemeanor or felony filing of criminal charges.

Thus, a defendant convicted of this section is subject to 1 year in the county jail or 16 months, 2 years or 4 years in state prison. P.C. § 191.5(c)(2).

Penal Code § 191.5 (b)

Pen. C. § 191.5(b) (Gross Vehicular Manslaughter While Intoxicated (GVMI) has the following elements:

Unlawful killing of a human being.

Without malice aforethought.

In the driving.

Of a vehicle.

Where the driving is in violation of CVC §23140, 23152 or 23153.

And the killing was either the proximate result of the commission of an,

Unlawful act, not amounting to a felony,

Lawful act which might produce death, in an unlawful manner.

Without gross negligence.

A violation of this section is subject to a misdemeanor or felony filing of criminal charges.

Thus, the defendant convicted of this section is subject to 1 year in the county jail or 16 months, 2 years or 4 years in state prison. P.C. § 191.5(c)(2).

DUI Drunk Driving Murder (Watson) 

The most serious charge related to driving under the influence is that of second degree murder, P.C. § 187, based on the implied malice theory.

Murder is defined as the killing of a human being or fetus with malice aforethought.

There are two types of malice aforethought: (a) express malice; and (b) implied malice. Proof of either one is sufficient to establish the state of mind necessary for murder.
Express malice requires an intent to kill, whereas implied malice requires the following:

The defendant intentionally committed an act;

The natural consequences of the act were dangerous to human life;

At the time of the act, the defendant knew the act was dangerous to human life; and

The defendant deliberately acted with a conscious disregard for human or fetal life.

The Driving Under the Influence Element 

According to Vehicle Code § 23152(a), a person is under the influence when, as a result of drinking alcohol and/or taking drugs, the person's "physical or mental abilities are impaired to such a degree that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances."
 
Driving Under the Influence of Drugs (DUI Drugs)

Proving that a defendant was under the influence of a drug requires proving that the substance involved impaired driving.

It is no defense to the charge that defendant had a prescription or otherwise legally used an over-the-counter, non-prescription drug (CVC § 23630).

A prescription is a defense to an added charge of Health and Safety Code § 11550, however, which carries a 90-day minimum jail sentence.

 For a conviction based in whole or part on drug use, the drug must be a substance or combination of substances other than alcohol that can impair driving to an appreciable degree (CVC § 312; CALJIC 12.60; CALCRIM 2110), and it must be proved that the defendant was in fact impaired by that drug (CALJIC 16.831; CALCRIM 2110.

The Proof of Impairment Element

Whether or not a drug is one which is capable of impairing driving to an appreciable degree, and whether or not the evidence in any particular case shows a blood level of the drug that could impair driving, are matters of expert opinion.

You’ll find that there’s little support in science for any prosecution expert’s opinion relating quantitative drug results with driving impairment, especially in urine samples.

 The California Department of Justice, Bureau of Forensic Services Toxicology Unit has published a paper on this subject, Monograph: Drug Quantitation in Biological Samples that says that they will not test urine for quantity, and that blood testing for quantity of drug, “to determine performance decrement such as driving impairment has little scientific validity.”

The paper has much additional useful information on the subject, and it is from the prosecution’s own experts.

The Proof of Driving Element

Both of the drunk driving offense statutes (CVC §§ 23152 and 23153), require that the defendant “drive” a motor vehicle. But what acts constitute driving?

Where the defendant was seen operating a moving automobile on a highway there is almost never any controversy about whether or not he was driving the vehicle; but occasionally the officer has not seen any such acts that are indisputably driving. Instead, he has perhaps found a defendant asleep on the front seat of a vehicle that is legally parked, with the transmission in neutral, the headlights and wipers on, and the engine running.

In
Mercer v. DMV (1991), the California Supreme Court contrasted the term “drive,” which was commonly understood to require volitional movement of the vehicle, with the term “driver,” defined in CVC § 305 as one who is either driving or in actual physical control.

The court pointed out that the phrase “actual physical control” does not appear anywhere in the drunk driving offense statutes. The court further noted that since “driver” is defined as one who drives or is in actual physical control, the two terms (drive versus actual physical control) must have different meanings. Construing these statutes strictly, rather than broadly, as is required by Keeler v. Superior Court of Amador County (1970), the court held that mere actual physical control is not enough to constitute driving.

Thus, “drive” for the purpose of the drunk driving statutes, requires volitional movement of the vehicle.

For more information your California Drunk Driving Offense, do not hesitate to contact the Law Offices of Barry T. Simons or the Law Office of Paul Burglin at: 888-9-DUI-911 or complete our confidential contact form for a free DUI Consultation and DUI Case Evaluation from California's Recognized Leaders in DUI defense throughout the State of California.

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