More often than not, when someone is arrested and charged with a DUI, they are charged with violating two different sections of the Vehicle Code. Usually, the code sections they are charged with violating are Vehicle Code sections 23152(a) and 23152(b). Many of my clients initially wonder why this is. Often times, it is a strategic move for a more flexible prosecution theory.
Vehicle Code section 23152(a) makes it a misdemeanor to drive under the influence of alcohol. In essence, 23152(a) requires that the prosecution prove, beyond a reasonable doubt, that the defendant consumed alcohol, drove, and, while driving, was impaired to the point where he/she was not able to drive with the care that a sober person would under the same circumstance. For example, someone who, due to the alcohol they consumed, was swerving all over the road, unable to stay within their own lane, could be in violation of this statute.
On the other hand, 23152(b) makes it a misdemeanor to merely drive with a blood/alcohol concentration of 0.08% or greater. For a defendant to be found guilty of violating 23152(b), the prosecutor must prove, beyond a reasonable doubt, that the defendant drove a vehicle while his/her blood/alcohol concentration was 0.08% or greater.
Now, how does charging DUI defendants with violating both statutes provide prosecutors with more flexibility?
Consider a hypothetical wherein a police officer pulls a driver over for a taillight that wasn't functioning properly. However, during conversation with the driver, the officer begins to suspect that the driver might be under the influence of alcohol. Suppose that the driver then submits to field sobriety tests and performs some of them well, but performs others poorly. The driver later submits to breath testing and the results show that the driver has a blood/alcohol concentration of approximately 0.11%. Now, because the officer did not observe the driver driving poorly and because the driver performed some of the field sobriety tests well, the district attorney might have difficulty convincing the jury that the driver was not able to operate the vehicle with the care of a sober person. In other words, the prosecutor would have difficulty proving, that the driver was guilty of 23152(a), Driving Under the Influence.
However, that same prosecutor probably stands a greater chance of convincing the jury that the driver's blood/alcohol concentration was 0.08% or greater at the time of driving, Vehicle Code section 23152(b). Charging the driver with violating both sections gives the prosecutor a choice of which statute to pursue depending on how the evidence shakes out.
On the other hand, consider a scenario wherein a driver is pulled over because he/she was swerving all over the road. During conversation with the driver, the officer smells alcohol on the driver's breath and notices the driver's speech is slurred. The driver performs most of the field sobriety tests poorly, but the breath testing shows the driver's blood/alcohol concentration to be approximately 0.07%. The prosecutor would have a very difficult time convincing a jury that the driver's blood/alcohol concentration was 0.08% or greater at the time of driving. However, the prosecutor might be able to convince a jury that, even though the driver's blood/alcohol concentration was below 0.08%, the driver was actually impaired by the alcohol to the point where he/she was not able to safely operate the vehicle.
A driver can also be in violation of both statutes at once. If, due to alcohol consumption, a driver is swerving all over the road, can't perform any of the field sobriety tests properly, and has a blood/alcohol concentration of approximately 0.11%, that driver might be in violation of both statutes.
Clearly, there are many technical issues that go into proper analysis of a DUI case. Effective defense against DUI charges requires a look at many issues not discussed above. For that reason, anyone charged with a DUI should seek advice from an experienced attorney who has a complete grasp of the intricacies of DUI law.
At Fisher Law Office, we have devoted many, many years to mastering these intricate issues so that we can use that information to our clients' advantage. If you or someone you know is facing DUI charges, please contact us for a free consultation to see what we can do to help.