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Want to know why the DA charges 2 different offenses in most DUI cases?

Well it's the holiday season, which means drunk driving is rampant. If you've ever had the unpleasant experience of being arrested and later charged with driving under the influence (DUI) here in California, you may have noticed something odd about the charges—there were two separate counts for the same offense. What’s up with that? Well there’s a method to the madness.

By way of background, unless you injured or killed someone, California DUIs are charged under Vehicle Code section 23152. There are multiple subdivisions, which are tailored to specific DUI violations. For example, Vehicle Code section 23152(a) prohibits driving while under the influence of alcohol specifically. By contrast, section 23152(e) prohibits driving while under the influence of a drug. And section 23152(f) prohibits driving under the combined influence of alcohol and drugs.

For standard, non-drug related DUIs, most people are charged with the following two offenses:

  • Count 1: Violation of section 23152(a)(Driving Under the Influence of Alcohol); and

  • Count 2: Violation of section 23152(b)(Driving With a Blood Alcohol Content of 0.08 Percent or More).

So why the two separate offenses? The answer is that while both charges address the same act, they are alternative theories to convicting you of DUI. What does that mean? Well, in short, it increases the chances for prosecutors to convict you. Let’s look at the following example.

Imagine two different guys—one who needs many alcoholic drinks to get drunk; the other who has only one shot of liquor and he’s dancing on tables. Let’s say the first guy—the one with higher tolerance for booze—gets pulled over and investigated for drunk driving. He submits to a breath or blood test that shows his blood alcohol content is .09 percent. In California, the legal limit is .08 percent. Although .01% higher than the legal limit, he feels perfectly fine to drive. In fact, say he performs well on all of his field sobriety tests (FSTs). So what happens if his case goes to trial? Here, because he didn’t seem under the influence of alcohol, a jury may not find him guilty of Count 1 (driving under the influence of alcohol). In other words, even though his blood alcohol was above the legal limit, the prosecutor will struggle to prove he was, in fact, under the influence when driving.

However, remember there are two counts charged. The second count means you’re guilty if the prosecutor can simply prove your blood alcohol content was .08% or more at the time you were driving. That’s it. It doesn’t matter if this guy felt or even seemed sober. He can moonwalk, do a backflip, or balance on one leg for over an hour; it doesn’t mean jack. If the evidence shows he was .08% or more while driving, this guy is technically guilty of Count 2, so the prosecutor is likely walking away with a conviction.

Conversely, if the second guy who felt impaired after only one drink got behind the wheel, that too presents a potential problem for the prosecutor’s case. Let’s say after he got pulled over, his blood alcohol was only .04%, well below the legal limit. But, despite his low test result, he performs terribly on FSTs and seems drunk. In this scenario, assuming he provided a sample shortly after driving, he’s not guilty of having a blood alcohol of .08% or more (Count 2). Again, he was only .04%. HOWEVER, he could be found guilty of Count 1 (being under the influence of alcohol). He was, technically, under the influence. So, in theory, he could be found guilty of DUI even with such a low test result. As a practical matter, though, I don’t know any DAs who would file a DUI case where a driver's blood alcohol was only .04%.

Hopefully, these two examples illustrate the point of why the Legislature carved out two different charges for the same offense and why the DA takes advantage of it. In sum, the prosecutor includes the two charges to cover both scenarios of a DUI suspect who could screw up the DA's case—i.e., the heavyweight drinker who performs well on FSTs despite a high blood alcohol content and the lightweight who's blitzed and a danger to the road even though he's below the legal limit). By including both charges, the DA increases the odds of securing a conviction. And there you have it.

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