In our blogs about the subject of driving while intoxicated, it is always stressed that any motorist who is accused of a DUI faces not one, but two, possible charges under the California Vehicle Code. Drivers who fail a blood alcohol test and have a blood alcohol content (BAC) of .08 or higher may be charged with violating California Vehicle Code § 23152(b) (driving with a BAC of .08 or higher) and California Vehicle Code § 23152(a) (driving while under the influence of alcohol).
California Vehicle Code § 23152(a) is a subjective standard that relies on circumstantial evidence to prove guilt. California Vehicle Code § 23152(b) is an objective standard that relies on the result of a blood or breath test. This provides prosecutors with a significant amount of flexibility to obtain a DUI conviction. It should be noted here that even if a motorist is charged and found guilty under both sections of 23152, it equates to just one conviction for DUI.
This double-edged sword demonstrates a notable situation. Is it possible for the State of California to charge you with driving while under the influence of alcohol under California Vehicle Code § 23152(a) if your BAC is below .08? The answer is yes, the State of California can and will charge you under § 23152(a). If you exhibit signs and symptoms of intoxication, you may still be charged with an offense under § 23152(a) even if no evidence exists that your blood alcohol concentration is above the legal limit of .08%.
Section 23152(a) applies to motorists who drive under the influence of alcohol. It covers the basic situation where a driver is physically and mentally impaired to drive and cannot operate a motor vehicle in the same manner as a sober person. After the arrest, the state will require the motorist to take a blood or breath test. Despite a BAC finding of less than .08, the motorist may still be charged with a DUI under § 23152(a).
To prove that the motorist was driving while intoxicated and obtain a conviction under § 23152(a), the state uses circumstantial evidence to show that the defendant was driving impaired by alcohol. Examples of this evidence include the following:
- The defendant was driving erratically (changing lanes, swerving, driving unusually slowly),
- The defendant failed field sobriety tests,
- The defendant smelled of alcohol,
- The defendant’s eyes were glassy, bloodshot, and/or watery,
- The defendant’s speech was slurred,
- The defendant walked with an irregular gait, and
- The defendant admitted to drinking.
To counter this circumstantial evidence, a defendant may present several defenses. These include the assertion that alcohol was not the cause of the defendant’s erratic driving. Another possible challenge is to attack the reliability of the field sobriety tests. Additionally, the police may have failed to follow legally required procedures when making the traffic stop and ensuing arrest. Because this type of evidence relies on inference, an experienced criminal defense attorney may be able to provide the requisite proof to thwart any weak or questionable evidence presented by the prosecution and avoid a conviction for DUI under § 23152(a).
The Dolan Law Offices can answer your questions and provide valuable advice and service if you have been charged with driving under the influence of drugs or alcohol. John Patrick Dolan has forty years of criminal defense experience. Contact Dolan Law Offices today at 760-775-3739 or 562-824-4007 to discuss your situation or find out more online here.
