DUI LAW

DUI – Driving Under the Influence

Driving in Violation of California Vehicle Code Sections 23152 and 23153

Any person who drives a vehicle while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug, violates Vehicle Code Section 23152. For these purposes, ''alcoholic beverage'' includes any liquid containing alcohol, such as cough syrup that has alcoholic content.
 
Even if the person is not technically under the influence, one who is driving a vehicle while having a blood-alcohol level of 0.08 percent or more violates Vehicle Code Section 23152(b). Driving with a blood-alcohol content of 0.08 percent or more is not the same offense as driving while under the influence of alcohol or drugs. A driver with a blood-alcohol content of 0.08 percent or more violates Vehicle Code § 23152(b), even when he or she retains the ability to drive a vehicle with the caution that is characteristic of a sober person of ordinary prudence.  However, in a prosecution under Vehicle Code Section 23152(a), there is a rebuttable presumption that a driver with a 0.08 percent blood-alcohol level is under the influence.  A person driving while addicted to any drug also violates the law, unless he or she is in an approved narcotic treatment program.

These violations are referred to as misdemeanor drunk driving or misdemeanor driving under the influence.

Anyone driving while under the influence who at the same time violates any other law that proximately causes death or bodily injury to any other person is guilty of the crime referred to as felony drunk driving or felony driving under the influence.

If a person is stopped while driving on a federal enclave located within the state of California, he or she will be subject to federal prosecution. The federal law incorporates those California statutes making drunk driving a criminal offense and authorizing punishment (18 U.S.C. § 13). However, the federal law does not incorporate the implied consent laws, discussed under [2], below, because those provisions are merely regulatory and procedural.
 
Under the Influence
 
A person is under the influence of an alcoholic beverage, drugs, or a combination of the two if the substance ingested so affects the nervous system, the brain, or the muscles as to impair to an appreciable degree the ability to operate a vehicle as would an ordinarily prudent and cautious person in full possession of his or her faculties using care and who is operating a vehicle that is subject to similar road conditions. The test does not vary with the type of substance alleged to have been ingested. A person need not actually be incapacitated to be under the influence; he or she is still guilty of the offense if the ability to drive in a prudent manner has been appreciably impaired. The proscription against driving under the influence of drugs is not limited to illegal or controlled substances.

Case law does not clearly define exactly what the term ''appreciable impairment'' means. However, the manner in which the vehicle is driven may be considered as evidence in determining impairment.
 
The fact that a person acts in a suspicious or furtive manner after stopping and exiting a car is not sufficient to show that the person's driving ability had been impaired, even if there is evidence the person had ingested drugs.  Also it is not sufficient for the prosecution merely to prove that the defendant drove after having ingested alcohol or a drug; it must also be proven that the person's ability was sufficiently impaired to the extent that he or she could not drive safely. 

Driving a Vehicle
 
The corpus delicti of the offense of driving under the influence of alcohol, with or without causing bodily injury, requires proof that the defendant drove a vehicle on a highway while under the influence of intoxicating liquor.  To ''drive'' a vehicle requires volitional movement of the vehicle. The term is distinct from that of ''being in actual physical control'' of a vehicle, which is a lesser standard than the ''drive'' standard that is required by Vehicle Code Sections 23152 and 23153.
  
A ''vehicle'' is defined as a device by which a person or property may be moved on a highway, except a device moved exclusively by human power or used exclusively on stationary rails or tracks.  Thus, for example, a person may be charged with misdemeanor drunk driving of a moped, which is a ''vehicle'' under the meaning of the drunk driving statutes, but may not be charged with misdemeanor drunk driving of a bicycle, which is, at most, an infraction.

Implied Consent

Any person, adult or juvenile, who drives a motor vehicle is deemed to have given his or her consent to one of the chemical tests that measure blood-alcohol level, and to chemical testing of his or her blood or urine to determine drug content of the blood. The tests available are those of the person's blood, breath, or urine.  However, a urine test for blood-alcohol level will be given only if blood and breath tests are unavailable. Hemophiliacs and persons with heart conditions who are using anticoagulant drugs under a doctor's direction are exempt from the blood test. This requirement is commonly referred to as ''the implied consent law.'' However, drivers will also be required to give their express consent to be tested; no person may be issued a new or renewed driver's license from the Department of Motor Vehicles unless that person has signed a declaration as a condition of licensure that he or she agrees to submit to a chemical test or tests of his or her blood, breath, or urine pursuant to Vehicle Code Section 23612, or a preliminary alcohol screening test pursuant to Vehicle Code Section 23136 if under age 21, when requested to do so by a peace officer.
 
A person under the age of 21 who is lawfully detained on reasonable cause to believe that the person is driving while under the influence of 0.01 percent blood-alcohol concentration or greater is deemed to have given his or her consent to a preliminary alcohol screening test, or other chemical test if the preliminary alcohol screening test device is not immediately available. Thus, it appears that if a preliminary alcohol screening test measures a concentration of 0.05 percent or greater, if the person is under the age of 21, or of 0.08 percent or greater, regardless of age, that the officer will have probable cause to require further chemical testing of the breath, blood, or urine. However, because an officer might suspect that a person under the age of 21 who appears to be under the influence might show such a measurement on a preliminary test, the officer is likely to proceed with the stop, from its inception, as a lawful arrest under Vehicle Code Section 23140, 23152, or 23153, give all the required admonitions for such an arrest, and proceed to give the preliminary alcohol screening test. If the defendant registers 0.05 or 0.08, as applicable, the officer may continue to proceed under Vehicle Code Section 23140, 23152, or 23153, and if the defendant registers below that level, but 0.01 or above, the officer may still proceed under Vehicle Code Section 23136 for license suspension.

 Choice of Test
 
If the defendant is under 21 years of age and is lawfully detained for reasonable cause to believe that he or she is driving while having a 0.01 percent blood-alcohol concentration in violation of Vehicle Code Section 23136(a), he or she is required to undergo a preliminary alcohol screening test if one is immediately available. If such a test is not immediately available, the defendant will be required to undergo a blood, breath, or urine test, as discussed below. Even if a preliminary alcohol screening test is given, the defendant may still be required to submit to a formal blood, breath, or urine test.
 
If the defendant is suspected of driving while having a 0.05 percent blood-alcohol concentration, if under age 21, in violation of Vehicle Code Section 23140, or having a 0.08 percent blood-alcohol concentration, regardless of age, in violation of Vehicle Code Section 23152 or 23153, he or she must be informed that he or she has the right to choose a blood or breath test; if neither of those tests is available, the person may choose a urine test. If the person is suspected of driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, the person has the right to choose from among the blood, breath, and urine tests and must be informed of that right. If the officer has reasonable cause to believe that the person was driving under the influence of any drug or the combined influence of alcohol and any drug, and the officer has a clear indication that a blood or urine test will reveal evidence of the person being under the influence, a blood or urine test may be required of a person who has chosen to submit to a breath test. If the person chooses a breath test, he or she must be advised before or after the test that the breath sample will not be retained and that he or she may choose to provide a blood or urine sample that will be retained. However, these rights are not of constitutional status. A test taken without giving the defendant the opportunity to choose another will not render the evidence obtained in the administered test inadmissible at trial. Nor will the failure to render the statutory advisements concerning the breath test give rise to an exclusionary remedy.  However, if the defendant has chosen to take the urine test and has provided a urine sample, he or she may not be forced to submit to a blood test in addition, and any blood drawn under these circumstances will be inadmissible at trial.
 
If one of the tests is not available or the person is not physically capable of completing one of the tests, he or she must be satisfied with choosing from among the remaining tests. Even if the test the person chooses is not available because of police negligence, he or she has the option to choose another available test or face the consequences and will not be entitled to dismissal of a drunk driving charge as a sanction. A breath sample taken with a malfunctioning device is not considered a completed test.
 
A person who is unconscious or otherwise unable to refuse consent to one of the blood-alcohol tests is deemed not to have withdrawn consent, and a test may be administered whether or not the person is told that his or her failure to submit to or complete a test will result in the suspension or revocation of his or her driver's license. If the test is not administered, the person's license may not be suspended or revoked. If administered, the results of the blood test of an unconscious person are admissible.
 
If the person chooses a breath test and is capable of completing the test, but instead fails to cooperate in taking the test, the officer may have the defendant's blood drawn in a medically approved manner as incident to a lawful arrest.

Failure or Refusal to Complete Test
 Effect of Failure or Refusal
 
Any person under the age of 21 who has been properly detained on reasonable cause to believe that he or she has been driving while having a 0.01 percent blood-alcohol concentration or greater, but who has refused an officer's request to submit to, or failed to complete a preliminary alcohol screening test pursuant to Vehicle Code Section 13388, must have his or her driver's license suspended or revoked as follows:

(1) Suspended for one year, if a first offender;
(2) Revoked for two years, if the refusal occurred within ten years of either:

(a) A separate violation of Vehicle Code Section 23136 that resulted in a finding of a violation, or a separate violation that resulted in a conviction, of Vehicle Code Section 23103 as specified in Vehicle Code Section 23103.5, or of Vehicle Code Section 23140, 23152, or 23153, or Penal Code Sections 191.5; or
 
 (b) A suspension or revocation of the person's privilege to operate a motor vehicle if that action was taken pursuant to Vehicle Code Section 13353, 13353.1, or 13353.2 for an offense that occurred on a separate occasion; or

(3) Revoked for three years, if the refusal occurred within ten years of either:

(a) Two or more separate violations of Vehicle Code Section 23136 that resulted in findings of violations, or two or more separate violations that resulted in convictions, of Vehicle Code Section 23103 as specified in Vehicle Code Section 23103.5, or of Vehicle Code Section 23140, 23152, or 23153, or Penal Code Section 191.5, or any combination thereof;
 
 (b) Two or more suspensions or revocations of the person's privilege to operate a motor vehicle if those actions were taken pursuant to Vehicle Code Section 13353, 13353.1, or 13353.2 for offenses that occurred on separate occasions; or
 
 (c) Any combination of two or more of (a) and (b), above.

Any person who has been properly arrested for violating Vehicle Code Section 23140, 23152, or 23153 and warned of his or her rights and obligations and who refuses or fails to complete one of the chemical tests available to evaluate blood-alcohol or drug level must have his or her driver's license suspended or revoked as follows:

(1) Suspended for one year, if a first offense;
(2) Revocation for two years, if the refusal occurred within ten years of either:

(a) A separate violation of Vehicle Code Section 23103 as specified in Vehicle Code Section 23103.5, or of Vehicle Code Section 23140, 23152, or 23153, or in Penal Code Section 191.5, which resulted in conviction; or
 
(b) A suspension or revocation of the person's privilege to operate a motor vehicle pursuant to Vehicle Code Section 13353 or 13353.2 for an offense which occurred on a separate occasion;
(3) Revocation for three years, if the refusal occurred within seven years of either:

(a) Two or more separate violations of Vehicle Code Section 23103, as specified in Vehicle Code Section 23103.5, or of Vehicle Code Section 23140, 23152, or 23153, or in Penal Code Section 191.5, which resulted in conviction;
 
 (b) Two or more suspensions or revocations of the person's privilege to operate a motor vehicle pursuant to Vehicle Code Section 13353 or 13353.2 for offenses which occurred on separate occasions; or
 
(c) Any combination of two or more of (a) and (b) above.

 
A refusal to take one of the chemical blood-alcohol or drug tests can take many forms, and with regard to the blood-alcohol test courts have found that practically any impediment to the swift completion of the chemical test is a refusal or failure to complete such test. Evidence of refusal to provide a sample for a blood-alcohol or drug test is admissible at the defendant's trial, and it is reasonable for the trier of fact to infer that the refusal resulted from a consciousness of guilt. For example, the breath test for blood-alcohol level requires at least two separate breath samples. If the first two samples are not sufficient to make the test complete, refusal to give additional samples will be deemed a refusal requiring revocation of the driver's license. Any delay in making a decision concerning whether to submit to a test or which test will be taken is also deemed a refusal.
 
Willful delays or failures to complete a blood-alcohol test are not the only conditions that bring the law concerning implied consent into play. If a person attempts, in good faith, to complete a test but is physically incapable of doing so, this failure will cause the Department of Motor Vehicles to suspend his or her license if he or she refuses to select and complete one of the other available tests.
 
The implied consent statutes clearly state that failure to complete any of the blood-alcohol or drug tests will result in suspension or revocation of a person's driver's license. The implication of this provision is that whether or not there has been a refusal, failure for any reason to complete at least one of the tests will result in suspension or revocation of a person's driver's license. The general rule in other states with implied consent statutes is that true physical inability to complete any test, despite a good-faith effort to do so, will not justify suspension or revocation of a person's driver's license. In California, if the only test available is the blood test, but the arrestee has hemophilia or a heart disease for which he or she is taking anticoagulant drugs under the direction of a licensed physician, the person is exempt from the requirements of the implied consent statute. If the defendant is confused or misled by the police as to his or her obligations, and this leads to a refusal to complete one of the tests, the defendant's license may not be suspended or revoked. If the confusion or misapprehension was not caused by an action of the police, however, the defendant's license will be suspended or revoked, even if the misapprehension was otherwise justified and in good faith. The license will also be suspended or revoked if the defendant refuses to submit to any test after the arresting officer incorrectly informs the defendant of the chemical testing options that are available, if the incorrect admonition has no causal effect on the defendant's refusal.
 
However, a license may not be suspended or revoked when the defendant has refused to take a blood test, if he or she has first asked to see the laboratory technician's identification before allowing his or her blood to be drawn and the technician has refused to comply. The defendant has the statutory right under Vehicle Code Section 23158 to have his or her blood drawn only by licensed, qualified individuals, and if the defendant expresses hesitation about submitting to the test without first seeing proper identification, he or she cannot be deemed to have refused to submit to the test. However, the defendant may not demand that the test be administered by his or her personal physician, and consent to testing on condition that it only be so administered is deemed a refusal to submit to testing.
 
License suspension or revocation is mandatory in Vehicle Code Section 23140, 23152, and 23153 cases when the person fails or refuses to submit or complete one of the three tests. The fact that a person who initially fails or refuses to complete a test later completes a test, later requests but is not given a test, is later released without being charged, or is later acquitted or convicted of the charge, will have no effect on the suspension or revocation. Moreover, if a person on more than one occasion in separate incidents refuses to submit to, or fails to complete, a test, and the officer requesting the test had reasonable cause to believe that the person had been driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or 23153, that person will be disqualified for life from operating a commercial motor vehicle. A peace office may immediately impound a vehicle driven by a person who has a blood-alcohol level of 0.10 percent or more, or who refuses or fails to complete a chemical test requested by the officer, if that person has, within the previous 10 years, been convicted of driving under influence in violation of Vehicle Code driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or 23153.  

 

 

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