After an evening out with friends, you may be confident that you haven't had enough for your blood alcohol concentration (BAC) to be above the legal limit. You hop in your car and head towards home, only to be pulled over by a California law enforcement officer. That's when reality sets in: you can be arrested and convicted of driving under the influence (DUI) in California even if your BAC isn't above the legal limit of .08 percent.
California has two different DUI offenses for alcohol. One is a “per se” offense that is tied to your BAC at the time you are driving. However, California Vehicle Code 23152 (a) makes it a misdemeanor offense for merely driving under the influence of any alcoholic beverage. This standard can be subjective. Because of the uneven way this statute can be applied, it is important to hire an experienced California DUI defense attorney to help guide you through the criminal justice system.
What is DUI in California?
California Vehicle Code 23152 (a) defines driving under the influence as follows:
It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.
That single sentence seems straightforward. However, there is quite a bit of ambiguity packed into those words. According to the Vehicle Code, the prosecutor in your case must prove both that you were driving a vehicle, and that you were under the influence of an alcoholic beverage while doing so.
Driving a Vehicle
First, the prosecutor must prove that you were actually driving a vehicle. The definition of driving can vary between different states. In some states, being in actual physical control of a vehicle while intoxicated is enough to be charged with DUI. Just sitting in a car with the keys in the ignition would be enough in those states. However, California law has a different standard. In California, there must be evidence of at least “slight movement” of the vehicle to obtain a conviction for DUI. This is true whether the vehicle was being driven down the highway or merely moved from one parking spot to another.
That doesn't mean it is an impossible standard by any means. The arresting officer can arrest you for DUI even if they don't witness you actually driving the vehicle. That's because the State of California can rely on circumstantial evidence to prove their case. They can rely on any factors that suggest you were driving, even if they didn't witness it themselves. Consider the following example:
You are driving home while intoxicated when you lose control of your vehicle and crash into a ditch. Before you can get out of the vehicle, a police officer arrives on the scene. Despite not witnessing the accident, you can still be arrested for DUI if the officer determines he has probable cause for an arrest.
At trial, the officer could testify to a variety of facts to indicate that you were driving. The officer could point to the vehicle crash site being just off a roadway with tire marks leading from the road to the crash site. The officer could also testify that you were still in the vehicle upon arrival, that no one else was around, and that when he passed the same spot only a few minutes before there was no wreck there. Given those circumstances, a jury could find you to have been driving despite the prosecutor lacking any witnesses that saw you do so.
Circumstantial evidence can also work in your favor when it tends to disprove you were driving, too. Consider this second example:
The police approach your running vehicle parked in your driveway when they notice that you are asleep inside, clearly intoxicated. However, your parked vehicle is up on blocks instead of wheels and is completely immobile. While several factors in your case might have pointed to your driving, the fact that it was impossible for your vehicle to move would likely vindicate you.
Under the Influence of an Alcoholic Beverage
Proving that you were under the influence of an alcoholic beverage can be a difficult task for a prosecutor. The California jury instructions define “under the influence” as:
A person is under the influence of an alcoholic beverage when as a result of drinking such alcoholic beverage, his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same conditions.
In other words, the prosecutor must prove that you have consumed enough alcohol that you cannot drive with the caution of a sober person.
Even with the lengthy definition, it is still subjective whether or not the alcohol you consumed affected your ability to drive safely. To prove their case, the prosecutor may call the arresting officer to testify about your demeanor or any bad driving the officer witnessed. They may also call anyone that can testify to your appearance or if they witnessed you consume alcohol shortly before driving. The prosecutor can even bring in a toxicology expert to attempt to show that you were under the influence of alcohol.
Potential Penalties for a California DUI Conviction
The penalties for a conviction of driving under the influence get more severe if you have prior DUI convictions. While a first, second or third offense is treated as a misdemeanor, fourth and subsequent offenses are charged as felonies under California law. When determining your charges, the prosecutor will only consider prior convictions that occurred within the last 10 years. These convictions all carry varying jail sentences, fines, and driver's license suspensions. If you are charged in L.A. County, you may also be required to install an ignition interlock device in your vehicle for up to three years once your driving privileges are reinstated.
DUI 1st Offense
A first-offense DUI in California can carry a jail sentence between 48 hours and six months in jail. However, judges will typically order probation instead of jail time on a first offense. A first offense may also carry a maximum fine of $1,000 as well as a six-month driver's license suspension. After the first 30 days of the suspension, you may be eligible for a restricted license.
DUI 2nd Offense
A second-offense DUI carries a minimum jail sentence of 96 hours and a maximum of one year. However, it's possible the judge in your case will order you to serve that sentence under house arrest or through some sort of alternative work program as opposed to an actual jail sentence. You will also face a maximum fine of $1,000 as well as a two-year suspension of your driving privileges. You may also be required to take an 18- or 30-month driving school to maintain your license after your suspension is over.
Dui 3rd Offense
A third-offense DUI is also a misdemeanor under California law. A conviction carries a jail sentence between 120 days and one year. That sentence can be reduced to 30 days if the judge gives you probation and you participate in a 30-month DUI school. A third DUI also carries a maximum fine of $1,000 as well as a three-year suspension of your driver's license.
DUI 4th and Subsequent Offenses
You will be charged with a felony upon your fourth DUI arrest. You may also face felony DUI charges if you have previously been convicted of felony DUI or if you caused serious injury or death while you were driving under the influence. A felony DUI carries a prison term of between 16 months and four years. Additionally, you face a maximum fine of $1,000 and a four-year revocation of your driving privileges.
Potential Defenses to a California DUI Charge
There are typically two major types of defense your DUI defense attorney may rely on at trial when there is no chemical test involved. These include challenges to the traffic stop and challenges to the notion that you were under the influence of alcohol.
California law enforcement can't simply stop every vehicle they come across. The officers must have a “reasonable suspicion” that a traffic offense or other crime has been committed in order to detain you. If you were stopped illegally, any evidence collected during your traffic stop can't be used against you at trial. It will be up to your defense attorney to challenge that evidence and have it excluded.
If your traffic stop was valid, your defense attorney will likely focus on discrediting the State's claim that you were under the influence of alcohol. It is the prosecutor's burden to prove that you were under the influence; if your attorney can convince a jury that you weren't drinking at all or that there is no evidence that your ability to drive was affected, a jury may acquit you of all charges.
Hiring the Right California DUI Defense Attorney
The most important step in defending yourself against DUI charges in California is hiring the right defense attorney. William S. Kroger Attorney at Law is an experienced L.A. County criminal defense attorney that has a track record of obtaining positive outcomes for his clients. Contact William S. Kroger Attorney at Law today for a free consultation.