DUI is prosecuted under California Vehicle Code sections 23152(a) and 23152(b). The reason for the two charges can be viewed as an attempt by the state to cover its bases when prosecuting a driver suspected of DUI, regardless of what their blood alcohol percentage might be. 23152(a) simply means you were driving under the influence. You can be convicted for this even if your BAC is below 0.08%. Under 23152(b), even if you are driving perfectly well, you may still be charged with DUI under this section, simply by having the high BAC.
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Vehicle Code section 23152(a)
The prosecution will allege a violation of Vehicle Code section 23152(a) when the individual was driving while under the influence of any trace of a controlled substance, legally prescribed drug, or small amount of alcohol, if their driving was impaired by the by the substance. For the purposes of this section, a driver is œunder the influence when their mental and physical driving abilities are so impaired that they are no longer able to operate the vehicle with the same prudence and caution as a sober person using ordinary care under similar circumstances. In order to be convicted under this section, the prosecution must establish evidence of impaired driving. Typically this will be attempted through percipient witness testimony of the driving prior to being stopped, or through the officers testimony as to any field sobriety tests performed prior to the arrest. An aggressive defense attorney will conduct an exhaustive investigation to negate such allegations. You will need to discuss your case with an attorney to determine what defense best suits the unique circumstances of your case.
Field Sobriety Tests
In addition to any perceived poor driving, the prosecution will rely heavily on the officers account of your performance on field sobriety tests, or FSTs. Though many FSTs are routinely performed, there are only three FSTs that are recognized by the National Highway Safety Administration: The Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn, and the One-Leg-Stand.
When conducting the HGN test, the officer slowly moves an object, most likely a pen, from the center line of vision, to the extent of each peripheral side, and back to center. The officer is looking to see if the driver follows the object smoothly throughout the test, or if the eyes jerk or flutter abnormally as the object gets closer to the peripheral. If the individual does not follow the object smoothly, is noticeably jerking abnormally, or if the eyes begins to jerk when it is within 45 degrees of center, rather than closer to the peripheral, the officer will automatically presume that the individual has a BAC of 0.08% or higher.
The Walk and Turn Test
In the Walk-and-Turn test, the driver is asked to place one foot in front of the other, heal-to-toe, walk 9 steps, arms straight out, turn around at the end of the 9 steps, and walk back in the same path. The officer will consider the following 8 clues regarding the subjects performance on the tests:
- Cannot keep balance while listening to instructions,
- Stops while walking to regain balance,
- Begins before instructions are finished,
- Steps off the line,
- Uses arms to balance,
- Takes an incorrect number of steps,
- Does not walk heel-to-toe throughout, or
- Stops for any reason.
If the individual displays any 2 of these 8 clues, the individual will fail this test and the driver will be presumed to have a BAC of 0.08% or higher.
The One-Leg-Stand Test
Finally, in the One-Leg-Stand test, the driver is asked to stand with one foot approximately 6 inches off the ground and count aloud for 30 seconds. The individual may not sway, use their arms to balance, hop, or put their foot down for any reason during this time. If they do any 2 of these actions, the officer may once again presume that they have a BAC of 0.08% or greater.
Field Sobriety Tests are designed for you to fail. The chances of passing are near zero. You are not required to do them. They are simply used as ammunition for the prosecution to prove that you were driving under the influence under Vehicle Code section 23152(a).
If you are ever asked to perform an FST, respectfully decline to do so. If you have been arrested for DUI and you did perform one of these tests, only in the rarest of cases will the officer report an individual preformed well. An experienced and aggressive criminal defense attorney can provide sufficient expert witness testimony backed by reliable scientific research to expose the inaccuracies and faults of these tests. Absent evidence of impaired driving, you may have a very good defense against a charge under Vehicle Code section 23152(a)
Vehicle Code section 23152(b)
It is presumed that the driver of a vehicle is intoxicated when operating the vehicle if their blood alcohol level is at or above 0.08%. Determining the BAC of an individual will be done in a number of ways, usually by a chemical test of your breath or blood. In a rare occasion, the far less accurate urine test may be used as well.
Preliminary Alcohol Screening (PAS) Device
In most cases, the officer will attempt to obtain your BAC using a Preliminary Alcohol Screening (PAS) device, commonly also known as a breathalyzer. This is the handheld device used at the time of arrest. Most people believe that if they refuse a breathalyzer at the scene, they will lose their license for one year. This is not true. Under Vehicle Code section 23612, drivers consent only to give a breath or blood sample when lawfully arrested under Vehicle Code section 23152. You will almost always be given a breath or a blood test at the station, regardless of whether or not you submit to the PAS device.
If you do consent to a PAS breath test, the reading will certainly be considered. However, it should not be relied upon to determine your exact BAC at the time. There are a number of other factors your attorney may present to the court to show that your actual BAC at the time you were operating the vehicle was far lower than the PAS reading. For example, it is possible that your drinking pattern just prior to entering the vehicle would result in what is referred to as a œrising BAC defense. The theory behind this defense is that the alcohol you consumed just prior to entering the vehicle had not yet been absorbed into your system at the time you were observed driving. It is possible that between the time you were pulled over and the time of the BAC test, your blood may have escalated to a point above 0.08%.
We can also discredit the accuracy of the PAS device by what is known as differing œpartition ratios in the general public. The PAS device was developed using technology that runs on the presumption that 2100mL of each persons breath contains the same amount of alcohol as 1mL of blood. This was discovered 40 years ago by the National Safety Counsels Committee for Test of Intoxication. However, modern research has revealed that partition ratios can vary from 1500:1 to 3000:1 which could result in two individuals, each with an actual BAC of 0.10%, blowing a difference of 0.07% to 0.14%. Therefore, one individual could be let off under a false assumption that they were below 0.08%, while an equally intoxicated individual could be arrested under the false assumption that they were nearly twice the legal limit. The California Supreme Court has followed suit and has allowed evidence of partition ratios to be admitted to educate juries of potential for false reading in the PAS devices. This evidence has proven to be a crucial factor in beating DUI charges.
A number of other factors affect the accuracy of a breath test. For example, medicine containing alcohol, belching, mouthwash, or breath spray will affect the accuracy of the reading. Heartburn or gastroesophagael reflux disease (GERD) may also certainly taint the reading of a breathalyzer. Law enforcement must also ensure each device is calibrated on a strict regiment to ensure accurate results. When these devices are not properly maintained and calibrated, cases are dismissed.
A blood test is a more accurate method of determining your BAC. However, even a blood test contains some margin of error. There are statutory requirements governing the exact method in which the blood must be taken, the manner in which the blood is stored, who draws the blood, who tests the blood, and the general chain of custody requirements as to who handles the blood and documentation certifying all of the above. If any of these requirements are not adhered to or documented thoroughly, your attorney may have reasonable grounds to have the blood thrown out and deemed inadmissible at trial.
Your attorney should also request authorization for the release of the blood sample for a retest by an independent toxicologist. In borderline cases of 0.09% or .10%, the results of a retest may reveal a BAC lower than the original testing by enough to bring the percentage below the legal limit. In cases where the results come back a 0.15%, 0.20%, or 0.25%, wherein additional allegations for high blood alcohol are charged, a retest may reduce the alleged BAC, which can serve as a bargaining chip to negotiate a favorable plea.
Aggressive Defense and Proven Results
A DUI, even with no priors and a relatively low BAC, can be a very traumatic experience. Most individuals who are arrested under this section have never been in trouble with the law. For the reasons stated above, it is crucial that you be proactive in obtaining the right attorney for your case. If you or a loved one has been arrested for DUI, please contact the Law Office of Peter Blair for a free and confidential consultation concerning your available options in this pressing matter.