Understanding Vehicle Code § 23152 - DUI Charges

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 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. 


For the vast majority of DUI cases, where only drinking alcohol is alleged, the DA's Office will generally file two charges:

  • 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 2 separate charges for one DUI case?


You may be wondering why the DA charges TWO crimes when you've only allegedly committed one drunk driving offense. Put simply, the reason the DA charges both crimes is to increase the chances of convicting you on at least one offense. Both charges relate to the same act but are alternative theories to convicting you of DUI. 

Imagine two different guys leaving a bar—the first guy is 250 pounds and needs many drinks to feel drunk; the second guy is 140 pounds and strongly feels the effects of alcohol after only one or two drinks. Let’s say the first guy had five beers and his blood alcohol was .09%. Although he was .01% higher than the legal limit of .08%, he felt perfectly fine to drive. In fact, after being pulled over, he performed well on the field sobriety tests. Here, the prosecution may struggle to prove the first guy was under the influence of alcohol and therefore could be found not guilty of Count 1. HOWEVER, because the first guy's blood alcohol was .09%, the DA will be able to prove him guilty of Count 2, which simply says that driving with a blood alcohol of .08% or higher is a crime. Decades of scientific research indicate that anyone, regardless of weight, is too impaired to safely drive with a .08% blood alcohol content. In other words, if the DA can prove your blood alcohol was .08% or more at the time you were driving, it won't matter whether you can handle your booze well and appear sober enough to drive.


Conversely, let's say the second guy, the lightweight, got pulled over after one stiff drink, had a blood alcohol of .05% and, although well below the legal limit, felt impaired and performed terribly on the field sobriety tests. Here, despite being below the limit (and thus not guilty of Count 2), he could be nevertheless be found guilty of simply being under the influence of alcohol in violation of Count 1.

In sum, prosecutors file both charges to cover both scenarios and increase the odds of convicting folks if cases proceed to trial. The takeaway to remember 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 driver's seat, 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.


Driving Under the Influence of Drugs (“DUID”)


In these cases, it doesn’t matter whether the drugs in your system were perfectly legal for you to take. The DA doesn’t have to prove you were high on a controlled substance. A valid prescription is not a defense. Remember many prescriptions state not to operate heavy machinery after ingesting—and a vehicle certainly qualifies as heavy machinery.





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