California has two basic
drunk driving laws, found in Vehicle Code sections 23152(a)
and 23152(b):
- 23152(a) It is a misdemeanor to drive
under the influence of alcohol and/or drugs.
- 23152(b) It is a misdemeanor to drive
with .08% or more of alcohol in your blood.
Note: In most cases, both the 23152(a)
and (b) offenses will be charged. Even though there
is only one act, the law says that a defendant charged
with drinking and driving can be convicted of BOTH offenses
-- but can only be punished for one (the punishments
are identical). Vehicle Code section 23153 sets forth
the "felony DUI" provisions where an injury
results from the drunk driving, while Penal Code sections
191.5 and 192 describe the crime of "vehicular
manslaughter" where there is a death.
VC 23152
VC 23152:
Alcohol and or drugs:
(a). It is unlawful for any person who is
under the influence of an intoxicating beverage,or under
the combined influence of an alcoholic beverage or drug
to drive a vehicle
The difference between a misdeamnor and a felony
is: misdemeanor driving under the influence
charges means that the charge involved no injury or
property damage and the penalty is up to 6 months in
jail whereas a felony has injury and the penalty could
be as much as up to one year in a state prison.
Definition:
The problem immediately is what does "under
the influence" mean?
The most common understanding of the
term is when the person starts to stumble and fall,
lose coordination, have slower reaction times, lose
the ability to process information, experience visual
impairments or go through personality changes.
Paragraph (b) of VC23152 states:
VC 23152:
(b) It is unlawful for any person who has a .08 percent
or more by weight to drive a vehicle
This more exacting definition of what under the influence
is was put in the vehicle code in 1982 and is considered
"per se". When you are arrested for DUI and
you must submit to a chemical test, the results of that
test can be used as evidence in court. this is called
presumptive or prima facie evidence. Technically, prima
facie means "at first view." Legally, it means
"adequate to establish the fact unless refuted"
.
Illegal "per se" law means that no evidence
other than the results of a properly obtained chemical
test are required to convict the defendant. In other
words, if your chemical test results are a .08 (and
all else was legal i.e. stop, arrests etc.) your
considered under the influence according to California
law.
Legal presumptions about levels of alcohol in the blood
are stated in presumptions about under the influence
are stated in another law VC 23155. |
