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Why You're Facing 2 Charges for 1 Alleged Drunk Driving Offense

Image by Emily Morter

Unless you injured or killed someone, California DUIs are charged under Vehicle Code section 23152. Specific kinds of DUIs are tailored under this section depending on which substance you allegedly were under the influence of at the time of driving. For example, subdivision (e) prohibits driving while under the influence of drugs and subdivision (f) prohibits driving under the combined influence of alcohol and drugs. 


The vast majority of DUI cases in court, however, involve only alcohol. The prosecuting District Attorney's Office will generally file two criminal charges against you:

  • in Count 1, a violation of section 23152(a), driving under the influence of alcohol; and

  • in Count 2, a violation of section 23152(b), driving with a blood alcohol content (BAC) of 0.08% or more.

Why does the DA do this?


You show up to court and discover you're facing TWO misdemeanor charges for only one alleged drunk driving incident. What's up with that? Is that even legal? Yes. Why is the DA doing it? To be blunt, the reason the DA charges both crimes is to increase their chances of winning in court. Both charges relate to the same act but are alternative theories to convicting you of a DUI. 

First, imagine a 250 pound guy who can drink a ton of booze without it seemingly affecting him. Let's say he got pulled over after 5 beers and his blood alcohol content ("BAC") was .09%, which is only .01% above the legal limit of .08%. What if he felt perfectly fine to drive and ended up performing really well on the field sobriety tests? The DA would then likely struggle to prove him guilty of Count 1— that he was under the influence of alcohol.


However, because his BAC measured .09%, the DA will nevertheless be able to prove him guilty of Count 2, which simply requires proof he drove with a BAC of .08% or higher. That's because decades of scientific research indicate that anyone, regardless of weight, is too impaired to safely drive when their BAC is .08% or more. So if the DA can prove your BAC was .08% or more at the time you were driving, it's considered a crime. It won't matter if you appeared sober enough to drive. In other words, being able to handle booze well is not a valid legal defense.


Now imagine a 130 pound guy who's a "lightweight" when it comes to drinking. After just one stiff drink, he feels the effects of alcohol and shouldn't be driving. Say he got pulled over and his BAC was only .05% (well below the legal limit) but he performed terribly on the field sobriety tests and showed clear signs that he shouldn't be driving. Here, the DA wouldn't be able to prove that him guilty of Count 2 (having a BAC of .08% or more), but may still be able to prove Count 1 that he was, simply, under the influence of alcohol.

In sum, prosecutors file both charges to cover both scenarios and increase the odds of proving their case in court if it proceeds to trial. That gives them added leverage in pretrial negotiations.


The takeaway to remember here is that even if you're certain that you're below a .08%, that doesn't mean you're safe from getting a DUI. And even if you can handle your booze like a champ, it won't do you any good if your blood alcohol results are above .08%. The bottom line: if you still feel a little buzz, before you hop behind the wheel, I advise you instead to spring for an Uber. Otherwise, you may have to call my law office to defend you.

The one bit of good news is that even if you are convicted of both charges is that the won't face double the punishment. Legally, you cannot be punished for two offenses that stem from the same conduct.


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