In California, it is illegal to drive under the influence of alcohol (often referred to as “DUI”). A driver of a motor vehicle is under the influence of alcohol when they have enough alcohol in their body to affect their thinking, movement, coordination, or otherwise impair their ability to drive.
A person can also be considered under the influence of alcohol if they have consumed enough alcoholic beverages to push their blood-alcohol content over the legal limit. Alcoholic beverages include any food or drink intended to be ingested by a person that contains ethyl alcohol.
It is not necessarily illegal for adults to drive with alcohol in their system. But, if they have alcohol in their system, that amount may not exceed the legal limit or affect their ability to drive. A driver does not need to be drunk to be charged with driving under the influence of alcohol.
This article explores alcohol-related driving offenses in California, and what it means for someone to be charged with one.
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Elements of Driving Under the Influence of Alcohol
To be convicted of a crime in California, several facts must be proven. These are called “elements” of the crime. In cases involving driving under the influence of alcohol (“DUI”), the elements are provided by California Vehicle Code sections 23152. Those are as follows:
- Driving. You drove a motor vehicle. The vehicle can be a car, motorcycle, motorbike, bus, dirt bike, ATV, motorized scooter, etc. It does not include human-powered vehicles, like bicycles or skateboards.
- Impairment. When you drove the motor vehicle, you were under the influence of alcohol. Even if you were sober, but your blood-alcohol content (often referred to as a “BAC”) was above the legal limit, you will be considered intoxicated.
These elements are explored in more detail below.
Driving
California courts hold that driving is the willful and intentional controlling of the car in order to move it and actually making it move. A driver is driving when they cause the car’s wheels to turn and move the car from one place to another, even if only an inch away.
Simply sitting behind the wheel does not constitute driving for the purposes of a DUI charge, but it can be circumstantial evidence that you recently drove the vehicle under the influence of drugs or alcohol.
Impairment
Under California law, a person can be considered under the influence of alcohol even if their blood-alcohol content is under the legal limit. A person is under the influence if the alcohol has impaired their ability to operate a vehicle in a manner like they ordinarily would.
Driving under the influence is usually measured both by blood alcohol content (often referred to as a “BAC”) and by field-testing.
In addition to actual impairment, California has also made it unlawful for a person to drive if their blood-alcohol content exceeds a certain amount:
- For most drivers, they will be considered under the influence if their blood-alcohol content (“BAC”) is 0.08% or greater at the time of driving, or 0.08% or greater according to chemical tests done within three hours of driving.
- If the driver is a commercial driver or is driving a passenger for hire— as a cab, chauffeur, or Uber driver does—the driver is under the influence if they have a 0.04% BAC or greater at the time of driving, or a 0.04 BAC according to chemical tests done within three hours of driving.
- If the driver is under the age of 21, the driver is under the influence of alcohol if their blood-alcohol content (“BAC”) is 0.05% or greater at the time of driving, or 0.01% or greater according to chemical tests done within three hours of driving.
In these situations, a person can be guilty of driving under the influence even if they feel and appear perfectly sober.
Injury and Intent Are Not Required
Driving under the influence of alcohol is a strict liability offense. A strict liability offense means that the driver does not need to have criminal intent or prior knowledge that he or she will drive around under the influence before committing the offense.
Strict liability offenses are generally harmful behaviors that are against the common good. Drunk driving has a high likelihood of hurting the public, even if those risks are never realized.
DUIs can result in injury, damage to property, and death. But these things are not required for a person to be charged with driving under the influence of alcohol. Because the risk is present any time a driver is intoxicated, no additional harm is required.
Put simply, there is no way to predict which type of harm will or won’t happen when someone drives under the influence. Thus, DUI charges act to punish the mere act of putting the community in danger of harm.
Making the act wholesale illegal is believed to deter people from engaging in a behavior that could have very dire consequences.
A Closer Look at Blood-Alcohol Content
How BAC Is Determined and Used
As mentioned above, California law punishes drivers who drive with a blood-alcohol content (“BAC”) above the legal limit, even if they are sober. A person’s blood-alcohol level must be measured within three hours of the time of the stop. The human body generally metabolizes alcohol at a steady rate of 0.015% every hour.
Tests—such as breath, urine, and blood tests—administered within three hours of the stop can help law enforcement assess BAC at the time of driving. If a driver is tested and they have a BAC of 0.08% or more within three hours of the DUI stop, courts are permitted to infer that they also had a BAC of 0.08% or more while driving.
But even if someone has a BAC lower than 0.08% within three hours of driving, it may be enough to infer that they had a BAC of 0.08% or more at the time of driving.
Example
If a driver’s blood-alcohol content was between 0.05% and 0.08%, a judge or jury can consider that fact when deciding whether the person was under the influence of an alcoholic beverage at the time of the alleged offense.
If the driver has a blood-alcohol content of less than 0.05%, it is generally presumed that they were not under the influence of an alcoholic beverage at the time of the alleged offense.
Is BAC the Only Measure of Intoxication?
No. Intoxication is not a mere number. The California Vehicle Code strictly forbids both:
- Driving while under the influence of alcohol, regardless of the driver’s blood-alcohol content; and
- Driving with a BAC of 0.08% or more for most drivers, or 0.04% or more for driving a paid passenger or commercial vehicle.
A person more sensitive to alcohol may be impaired with a BAC lower than the legal limit. A person with a higher tolerance of alcohol, such a chronic alcoholic, might have a BAC much higher than 0.08% and might not be impaired as much as a person with lower tolerance.
For those pulled over and suspected of DUI, police officers will usually do a breath test or have the driver submit to blood testing. They may also conduct a standardized field sobriety tests on drivers who appear to be driving under the influence.
Penalties for Driving Under the Influence of Alcohol
First Offense
The sentence in DUI cases can vary significantly depending on whether the defendant has previous offenses. If the defendant has no previous offenses, a violation of Vehicle Code section 23152 will be charged as a misdemeanor.
The available punishments are as follows:
| Code Section | Vehicle Code, §§ 23152, 23536 |
| Violation Type | Misdemeanor |
| Custody Time | Imprisonment in county jail for at least 96 hours, but no more than six months. |
| Additional Consequences |
|
Second Offense
If, in the last 10 years, the defendant has one of the following convictions, they will face a higher range punishments:
- Reckless driving,
- Driving under the influence of drugs or alcohol, or
- Driving under the influence of drugs or alcohol causing injury.
If the defendant has only been convicted of one previous offense in the last ten years (meaning, the current offense is their second), a charge for driving under the influence of alcohol will still be treated as a misdemeanor.
The punishment in that case is as follows:
| Code Section | Vehicle Code, §§ 23152, 23540 |
| Violation Type | Misdemeanor |
| Custody Time | Imprisonment in county jail for at least 90 days, but no more than one year. |
| Additional Consequences |
|
Third Offense
If, in the last 10 years, the defendant has two of the following convictions, they will face a higher range punishments:
- Reckless driving,
- Driving under the influence of drugs or alcohol, or
- Driving under the influence of drugs or alcohol causing injury.
If the defendant has only been convicted of two previous offense in the last ten years (meaning, the current offense is their third such offense), a charge for driving under the influence of alcohol will still be treated as a misdemeanor.
The punishment in that case is as follows:
| Code Section | Vehicle Code, §§ 23152, 23546 |
| Violation Type | Misdemeanor |
| Custody Time | Imprisonment in county jail for at least 120 days, but no more than one year. |
| Additional Consequences |
|
Fourth or Later Offense
If, in the last 10 years, the defendant has three or more of the following convictions, they will face a higher range punishments:
- Reckless driving,
- Driving under the influence of drugs or alcohol, or
- Driving under the influence of drugs or alcohol causing injury.
In such a case, a charge for driving under the influence of alcohol can be treated as a misdemeanor or a felony.
The range of punishments in that case is as follows:
| Code Section | Vehicle Code, §§ 23152, 23550 |
| Violation Type | Can be charged as a misdemeanor or a felony (depending on the prosecutor’s discretion). |
| Custody Time | If charged as a misdemeanor, between 120 days and one year in county jail. If charged as a felony, up to three years in state prison. |
| Additional Consequences |
|
Other Consequences of a DUI Conviction
In addition to the sentencing consequences discussed above, a conviction for driving under the influence of drugs can have some significant consequences on a person’s life. Those include:
- Arrests and convictions are a matter of public record.
- A DUI conviction can keep you from getting jobs or even volunteer positions that require a clean driving record.
- A DUI conviction may bar entry into certain professions that require a clean record.
- DUI convictions may come up in custody battles and can be used against the parent to demonstrate a lack of fitness.
- Losing one’s license may result in losing jobs, losing freedom to live in suburbs or remote places, or to transport children or family. Driving with a suspended license is a misdemeanor.
- Moving violations on your driving record can raise insurance rates. Those who are habitual offenders may find it more difficult to find a company that will insure them and at a reasonable rate.
Along these same lines, if there was a minor in the vehicle and the driver was under the influence of alcohol, there can be penalties in addition to those described above. If a driver commits a DUI while a minor under 14 years of age is in the vehicle, the punishment is enhanced as follows:
- 48 hours of extra jail time if the current offense is their first conviction in the last ten years for any of the following: reckless driving, driving under the influence of drugs or alcohol, or driving under the influence of drugs or alcohol causing injury.
- 10 days of extra jail time if the current offense is their second conviction in the last ten years for any of the following: reckless driving, driving under the influence of drugs or alcohol, or driving under the influence of drugs or alcohol causing injury.
- 30 days of extra jail time if the current offense is their third conviction in the last ten years for any of the following: reckless driving, driving under the influence of drugs or alcohol, or driving under the influence of drugs or alcohol causing injury.
- 90 days of extra jail time if the current offense is their fourth or subsequent conviction in the last ten years for any of the following: reckless driving, driving under the influence of drugs or alcohol, or driving under the influence of drugs or alcohol causing injury.
The minor doesn’t have to be hurt or harmed in anyway. Simply driving under the influence with a minor in the car is a violation. These jail times must be served regardless of whether the defendant is incarcerated or gets probation.
Possible Defenses for Driving Under the Influence of Alcohol
Because driving under the influence is a strict liability offense, the prosecution doesn’t need to prove intent to become intoxicated or intent to drive while intoxicated. Those details are not at issue.
Likewise, it doesn’t matter if the driver had beer instead of whisky, or if the driver didn’t think he or she was intoxicated at the time.
Possible defenses to a DUI charge will generally attempt to disprove one of the elements of the crime. Even though there are only two elements—being intoxicated and driving—there are many possible defenses, depending on the particular facts of the case.
The Driver Didn’t Drink
A person can fail a field sobriety test without being intoxicated. Not everyone can recite the alphabet backwards or walk in a straight line heel-to-toe. Similarly, breathalyzers and blood tests can yield false positives.
If a driver charged with DUI wasn’t actually tested for intoxication or tested within three hours after first suspected of driving under the influence, then there is no evidence of intoxication.
The Driver Wasn’t “Under the Influence” of Alcohol
It is possible to have had alcoholic beverages before driving, but to not be impaired by them or be under the influence, so long as the driver’s BAC was below 0.08% while they were driving.
According to California Vehicle Code section 23152, there is a “rebuttable” presumption that a BAC of 0.08% or above indicates impairment. Likewise, there is a rebuttable presumption that a BAC of 0.04% or above indicates impairment for a driver of a commercial motor vehicle or when driving a paid passenger for hire. A rebuttable presumption means that the assertion is assumed true unless someone successfully argues otherwise.
Additionally, a driver can be impaired by a substance other than alcohol. Impairment by another substance is not a defense against DUI. It is a still a DUI to drive under the influence of a substance other than alcohol. Driving under the influence of any drug is illegal.
No Driving Occurred
If the person charged with driving while under the influence of alcohol wasn’t actually driving, then there is no DUI. One of the elements of DUI is driving, which is the act of moving of a motor vehicle through use of its controls. Driving isn’t sitting in the car as a passenger, or sleeping in the car, or even pushing the car. The police may ticket the wrong person in a car, or they may infer that someone has driven because they’re sitting in a car, even if the car hasn’t moved.
Involuntary Intoxication
Even though DUI is a strict liability offense, there is no criminal liability if the driver didn’t voluntarily or knowingly become intoxicated. In California, involuntary intoxication is an absolute defense.
So, if the driver: (1) didn’t know that he or she ingested alcohol, (2) had no way of knowing that he or she ingested alcohol, and (3) did not know they would become intoxicated and thus impaired when driving, then he or she may not be liable for DUI.
Example
A driver goes to a party and drinks a very sweet punch that masks the taste of the alcohol in it. The driver is not a drinker and isn’t familiar with alcoholic drinks or their effects. No one tells the driver that the punch is spiked—in fact, the driver is told that it’s a virgin drink. The driver doesn’t feel the affects of the alcohol until she is driving on the freeway.
If the driver pulls over as soon as they realize they might be intoxicated, they are probably not guilty of the crime of driving under the influence of alcohol.
The Driver’s Impairment Was Caused by Something Else
Some conditions, like hypoglycemia may appear like drunkenness and may create a false positive on a field test. Hypoglycemia, and other conditions (like migraines) can affect sight, speech, hearing, and coordination.
In these situations, the driver may have to offer evidence that he or she has a medical condition that would cause a false positive on a field test or that he or she was suffering from that medical condition at the time they were under suspicion for DUI.
Strategies for Defending Alcohol-Related DUI Cases
To convince a jury to render a guilty verdict in a DUI case, the prosecutor must demonstrate that, beyond a reasonable doubt, all of the elements of a charge occurred.
The best way to defend against a DUI charge is to attack the element for which the prosecution has the least evidence. The defense doesn’t necessarily have to introduce new facts or evidence into the case (although that can sometimes help). But they should attempt to raise a reasonable doubt about the evidence offered by the prosecution.
Here are a few possible strategies when defending against a DUI charge:
Attack the Government’s Evidence
Much of the evidence used against a defendant may be circumstantial. Circumstantial evidence is a type of indirect evidence that requires inferences to support a particular conclusion. This is as opposed to direct evidence, such as a police officer seeing someone drive a vehicle or having a video of someone weaving down the road.
Under California law, a jury may use circumstantial evidence to reach a guilty verdict. But, if the only evidence in the case is circumstantial, they must acquit the defendant unless the only reasonable conclusion is that evidence points to guilt. If the evidence could point to either guilt or innocence, the jury must treat the evidence as pointing to innocence.
Circumstantial evidence is usually easier to attack than direct evidence, so it can provide a great opportunity for defendants to challenge the prosecutor’s case.
Plea Bargaining
If there isn’t strong evidence to prove a DUI, but there is strong evidence for a lesser charge, it may be beneficial to avoid a trial and to plea down to the lesser charge.
A plea bargain can help keep the defendant out of prison if he or she has less than three prior DUIs, and from having a felony on his or her record. It might also allow the defendant to negotiate a lighter overall sentence.
Challenge the Sobriety Test
The body metabolizes alcohol at a fairly steady rate, and alcohol tests must be administered within three hours of the stop to ensure an accurate measurement of the driver’s blood-alcohol content.
If the tests are done too late, if they aren’t conclusive, if they’re done incorrectly, or if they’re done in an unorthodox manner, the results may be inadmissible. It’s also possible to fail a field coordination test and be completely sober.
For example, failing to recite the alphabet backward isn’t direct evidence of intoxication. There has to be more circumstantial evidence of intoxication than just that.
Attacking questionable evidence about the driver’s alleged intoxication can sometimes result in a dismissal of the charge
Challenge Government Misconduct
Everyone accused of an offense has the right to due process of law. You may know that you should be read your Miranda rights when you’re arrested, or that the police usually need probable cause to search your vehicle or your person.
You may also know that you have the right to have an attorney present when giving a statement to the police. There are other rules and procedures that law enforcement and the prosecution must follow to protect your right to due process.
If any of these rights are violated, it may mean that evidence collected during these violations is inadmissible in court. Since the prosecution has to prove all elements of an offense to get a conviction, the absence of some evidence may mean that they can’t prove their case against you. A case may be dismissed, or if a defendant stands trial, he or she may be acquitted.
Final Thoughts
If you are currently facing charges for driving under the influence of alcohol, the facts in your case matter. They can mean the difference between acquittal and conviction. You may also be able to plea to a lesser charge or get probation instead of jail time.
A criminal defense attorney experienced in DUI cases can counsel you, defend you, and advocate for you while going through the system. Get legal advice from an experienced DUI lawyer by calling attorney Long Beach Criminal Lawyer at 562-304-5121
References
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Vehicle Code, § 23152, subd. (a) [“It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.”].
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See People v. Mead (1954) 126 Cal.App.2d 164, 170 [A driver “need not be drunk or intoxicated in order to be under the influence of intoxicating liquor; it is sufficient if such liquor has so far affected his nervous system, brain, or muscles, as to impair to an appreciable degree his ability to operate the cab in a manner like that of an ordinarily prudent and cautious person in the full possession of his faculties, using reasonable care and under like conditions.”].
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Vehicle Code, § 23152, subd. (b) [“It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”].
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Vehicle Code, § 109 [““Alcoholic beverage” includes any liquid or solid material intended to be ingested by a person which contains ethanol, also known as ethyl alcohol, drinking alcohol, or alcohol, including, but not limited to, alcoholic beverages as defined in Section 23004 of the Business and Professions Code, intoxicating liquor, malt beverage, beer, wine, spirits, liqueur, whiskey, rum, vodka, cordials, gin, and brandy, and any mixture containing one or more alcoholic beverages. Alcoholic beverage includes a mixture of one or more alcoholic beverages whether found or ingested separately or as a mixture.”]; Bus. & Prof. Code, § 23004.
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People v. Mead (1954) 126 Cal.App.2d 164, 170 [“He need not be drunk or intoxicated in order to be under the influence of intoxicating liquor”].
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Clingenpeel v. Municipal Court (1980) 108 Cal.App.3d 394, 399. An intoxicated person riding a bike or skateboard may still be ticketed for public drunkenness under Penal Code section 647, subdivision (f).
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Vehicle Code, § 23152, subds. (a), (b), (e), (g).
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Henslee v. Dep’t of Motor Vehicles (1985) 168 Cal.App.3d 445, 451–452 [“In our opinion the term ‘drive’ within the meaning of this code section includes the situation where . . . an intoxicated individual actively asserts control over a vehicle and takes every step necessary to resume travel along the public road.”]; Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1029 [“It is true that the driver in Henslee only moved the car slightly. But the movement need not be extensive; even a matter of a few inches will suffice to constitute driving. In our view, if the driver does not move the vehicle in the officer’s presence, the offense is not committed in his presence.”].
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In re Queen T. (1993) 14 Cal.App.4th 1143, 1145 [“Minor’s act of steering the car, although she was not operating the accelerator or brakes, renders her a ‘driver’ within the meaning of sections 305 and 23153.”].
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Music v. Dep’t of Motor Vehicles (1990) 221 Cal.App.3d 841, 850 [“[I]f the driver does not move the vehicle in the officer’s presence at least a few inches, the offense of driving under the influence has not occurred in the officer’s presence. Any ensuing warrantless arrest is invalid”].
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Vehicle Code, § 23152 [“It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.”].
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Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 1058 [“To be ‘under the influence’ within the meaning of the Vehicle Code, the liquor or liquor and drug(s) must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties.”].
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People v. Cortes (1989) 214 Cal.App.3d Supp. 12, 19.
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Vehicle Code, §§ 23152, subd. (b), 23153, subd. (b).
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Vehicle Code, §§ 23152, subds. (d), (e), 23153.
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Vehicle Code, § 23136, subd. (a) [“Notwithstanding Sections 23152 and 23153, it is unlawful for a person under the age of 21 years who has a blood–alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle. However, this section shall not be a bar to prosecution under Section 23152 or 23153 or any other provision of law.”]; Vehicle Code, § 23140, subd. (a) [“It is unlawful for a person under the age of 21 years who has 0.01 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”].
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People v. Woodard (1983) 143 Cal.App.3d Supp. 1, 4.
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Vehicle Code, § 23152.
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People v. Randolph (1989) 213 Cal.App.3d Supp. 1, 9–10 [“Alcohol is metabolized at a ‘pretty predictable rate’ of 0.015 percent per hour.”].
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See, e.g., CALJIC 12.61.1: [“If the evidence establishes beyond a reasonable doubt that (1) a sample of defendant’s blood, breath or urine was obtained within three hours after [he] [she] operated a vehicle and (2) that a chemical analysis of the sample established that there was 0.08 percent or more, by weight, of alcohol in the defendant’s blood at the time of the performance of the chemical test, then you may, but are not required to, infer that the defendant drove a vehicle with 0.08 percent or more, by weight, of alcohol in [his] [her] blood at the time of the alleged offense.”].
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Vehicle Code, § 23610, subd. (a)(2). [“If there was at that time 0.05 percent or more but less than 0.08 percent, by weight, of alcohol in the person’s blood, that fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but the fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense.”].
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Vehicle Code, § 23610, subd. (a)(1) [“If there was at that time less than 0.05 percent, by weight, of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense.”].
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Vehicle Code, § 23152.
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Vehicle Code, § 23612, subd. (h).
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Vehicle Code, § 23536.
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Vehicle Code, §§ 23103, 23103.5.
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Vehicle Code, § 23152.
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Vehicle Code, § 23153.
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Vehicle Code, § 23540.
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Vehicle Code, §§ 23103, 23103.5.
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Vehicle Code, § 23152.
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Vehicle Code, § 23153.
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Vehicle Code, § 23546.
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Vehicle Code, §§ 23103, 23103.5.
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Vehicle Code, § 23152.
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Vehicle Code, § 23153.
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Vehicle Code, § 23550.
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Vehicle Code, § 14601.5.
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Vehicle Code, § 23572.
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Vehicle Code, §§ 23103, 23103.5.
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Vehicle Code, § 23152.
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Vehicle Code, §§ 23153, 23572.
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Vehicle Code, §§ 23103, 23103.5.
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Vehicle Code, § 23152.
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Vehicle Code, §§ 23153, 23572.
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Vehicle Code, §§ 23103, 23103.5.
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Vehicle Code, § 23152.
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Vehicle Code, §§ 23153, 23572.
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Vehicle Code, §§ 23103, 23103.5.
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Vehicle Code, § 23152.
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Vehicle Code, §§ 23153, 23572.
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Vehicle Code 23572. However, if the defendant is also convicted of endangering or causing physical injury to a child (Penal Code, § 273a), this doesn’t apply.
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Vehicle Code, § 23152, subd. (b).
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Vehicle Code, § 23152, subd. (d), (e).
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People v. Cruz (1978) 83 Cal.App.3d 308, 313 [“Unconsciousness due to involuntary intoxication is recognized as a complete defense to a criminal charge.”].
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Patterson v. New York (1977) 432 U.S. 197, 210.
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CALCRIM 224 [“Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.”].
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People v. Randolph (1989) 213 Cal.App.3d Supp. 1, 9–10.
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CALJIC 12.61.1.
