Variants of DUI in California
Providing Aggressive Representation against All Types of DUI Charges
Many people who face the most serious consequences associated with a DUI conviction jump out of the frying pan and into the fire because they do not understand their legal rights and options. While there are a range of alcohol-related driving offenses with varying severity of penalties based on the specific circumstances and relevant charge or penalty enhancement, even a basic DUI offense takes two separate forms under California law.
Basic DUI: Traditional DUI Vehicle Code 23152(a) and DUI Per Se Vehicle Code 23152(b)
Most drivers arrested for driving under the influence (DUI) in California are actually charged with two separate misdemeanor offenses: (1) “traditional DUI” (VC Section 23152(a)) and (2) “DUI Per Se” (VC Section 23152(b)). “Traditional DUI” is the subjective form of DUI, which is actually based on impaired driving abilities, whereas “DUI Per Se” is based on having a blood alcohol concentration (BAC) that exceeds .08 percent. Although drivers often are charged under both of these provisions, the offenses carry the same penalty. The offenses “merge” if you are convicted, meaning that you can be sentenced under either provision, but not both.
Regardless of the type of DUI, both offenses require that a driver actually be determined to be “driving.” However, this term is defined quite expansively by California courts, so the police may affect an arrest, and the prosecutor may file charges even if the vehicle is turned off or you were riding a bike. Further, circumstantial evidence of driving is sufficient, such as you sleeping in the driver’s seat with the vehicle obstructing traffic while it is stopped with the keys in the ignition. Drivers who attempt to act responsibly by “sleeping it off” should consider putting their key in the trunk and sleeping in the backseat.
Traditional DUI (VC §23152(a) Driving under the Influence of Alcohol and/or Drugs
This is the form of DUI that is actually related to your driving or more specifically driving ability, so you can be convicted of this form of DUI even if you pass a chemical test with a BAC below the legal limit of .08 percent. A driver is “under the influence” of drugs or alcohol if your “physical or mental abilities are impaired to such a degree that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.”
Evidence of this type of violation will usually consist of some or all of the following:
While a conviction of this form of DUI is based on driving ability, a prosecutor could conceivably file charges even if the officer did not observe you driving badly. The officer might indicate that he pulled you over for a burned out taillight, but suspected you were intoxicated based on your answers/statements and observations of you, or open containers in the vehicle during the stop. If you then agree to perform FSTs, this could theoretically result in a DUI arrest, but our attorneys might effectively attack such a case based on extensive examples of your good driving prior to being stopped. This is the version of DUI that you will face if you refuse chemical testing of your blood alcohol concentration.
DUI Per Se (VC § 23152(b) Driving with a BAC .08 or Greater
Even if you drive flawlessly, you can be charged and convicted of committing a DUI offense under this provision of the vehicle code. This form of DUI was adopted by states because convictions are easier to obtain if the prosecutor only needs to prove that you were driving with a BAC of .08 percent or above. Put another way, you are guilty of DUI even if you were not actually under the influence of alcohol or drugs as long as you have a high enough BAC level.
If you are charged with this form of DUI, evidence regarding your driving prior to the stop, field sobriety tests and roadside breath tests will still be relevant as to whether the officer had a sufficient legal basis to stop your vehicle and to conduct a lawful arrest. In this type of case, careful review and analysis of the chemical testing procedures and results is critical since your BAC level is the basis of your violation.
A brief mention should be made of DUI in cases involving minors who are subject to a special “per se” version of DUI. If a driver operate a motor vehicle with a BAC of .05 percent, the driver can be charged with DUI. This is California’s version of the zero tolerance law for drinking and driving by minors.
Many people who face the most serious consequences associated with a DUI conviction jump out of the frying pan and into the fire because they do not understand their legal rights and options. While there are a range of alcohol-related driving offenses with varying severity of penalties based on the specific circumstances and relevant charge or penalty enhancement, even a basic DUI offense takes two separate forms under California law.
Basic DUI: Traditional DUI Vehicle Code 23152(a) and DUI Per Se Vehicle Code 23152(b)
Most drivers arrested for driving under the influence (DUI) in California are actually charged with two separate misdemeanor offenses: (1) “traditional DUI” (VC Section 23152(a)) and (2) “DUI Per Se” (VC Section 23152(b)). “Traditional DUI” is the subjective form of DUI, which is actually based on impaired driving abilities, whereas “DUI Per Se” is based on having a blood alcohol concentration (BAC) that exceeds .08 percent. Although drivers often are charged under both of these provisions, the offenses carry the same penalty. The offenses “merge” if you are convicted, meaning that you can be sentenced under either provision, but not both.
Regardless of the type of DUI, both offenses require that a driver actually be determined to be “driving.” However, this term is defined quite expansively by California courts, so the police may affect an arrest, and the prosecutor may file charges even if the vehicle is turned off or you were riding a bike. Further, circumstantial evidence of driving is sufficient, such as you sleeping in the driver’s seat with the vehicle obstructing traffic while it is stopped with the keys in the ignition. Drivers who attempt to act responsibly by “sleeping it off” should consider putting their key in the trunk and sleeping in the backseat.
Traditional DUI (VC §23152(a) Driving under the Influence of Alcohol and/or Drugs
This is the form of DUI that is actually related to your driving or more specifically driving ability, so you can be convicted of this form of DUI even if you pass a chemical test with a BAC below the legal limit of .08 percent. A driver is “under the influence” of drugs or alcohol if your “physical or mental abilities are impaired to such a degree that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.”
Evidence of this type of violation will usually consist of some or all of the following:
- Observations of the accused driving prior to the stop
- Officer testimony regarding alleged indications of intoxication during the stop: red eyes, breath with odor of alcohol, impaired coordination, slurred speech
- Performance on field sobriety tests (FSTs)
While a conviction of this form of DUI is based on driving ability, a prosecutor could conceivably file charges even if the officer did not observe you driving badly. The officer might indicate that he pulled you over for a burned out taillight, but suspected you were intoxicated based on your answers/statements and observations of you, or open containers in the vehicle during the stop. If you then agree to perform FSTs, this could theoretically result in a DUI arrest, but our attorneys might effectively attack such a case based on extensive examples of your good driving prior to being stopped. This is the version of DUI that you will face if you refuse chemical testing of your blood alcohol concentration.
DUI Per Se (VC § 23152(b) Driving with a BAC .08 or Greater
Even if you drive flawlessly, you can be charged and convicted of committing a DUI offense under this provision of the vehicle code. This form of DUI was adopted by states because convictions are easier to obtain if the prosecutor only needs to prove that you were driving with a BAC of .08 percent or above. Put another way, you are guilty of DUI even if you were not actually under the influence of alcohol or drugs as long as you have a high enough BAC level.
If you are charged with this form of DUI, evidence regarding your driving prior to the stop, field sobriety tests and roadside breath tests will still be relevant as to whether the officer had a sufficient legal basis to stop your vehicle and to conduct a lawful arrest. In this type of case, careful review and analysis of the chemical testing procedures and results is critical since your BAC level is the basis of your violation.
A brief mention should be made of DUI in cases involving minors who are subject to a special “per se” version of DUI. If a driver operate a motor vehicle with a BAC of .05 percent, the driver can be charged with DUI. This is California’s version of the zero tolerance law for drinking and driving by minors.
Felony DUI Offenses & Penalty Enhancements
DUI Serious Injury
While a DUI is generally charged as a misdemeanor, you will face felony charges if you cause serious bodily injury. Although overzealous prosecutors might be tempted to charge felony DUI for injuries that are not especially severe, the decision to retain an experienced DUI attorney prior to the filing of formal charges can prevent the trap of overcharging. Because the starting point and range of plea discussions are impacted by the initial charge, prosecutors tend to overcharge cases to obtain an advantage in plea negotiations. If you retain our office early, we might persuade the prosecutor to charge an injury-related DUI as a misdemeanor case.
Fourth DUI Conviction within Ten Years
If you are convicted of DUI four times within a four (4) year period, this will also result in the most current DUI being charged as a felony. The risk of a felony for a subsequent DUI conviction is a reason to fight any DUI charge, which includes a first offense DUI.
While a DUI is generally charged as a misdemeanor, you will face felony charges if you cause serious bodily injury. Although overzealous prosecutors might be tempted to charge felony DUI for injuries that are not especially severe, the decision to retain an experienced DUI attorney prior to the filing of formal charges can prevent the trap of overcharging. Because the starting point and range of plea discussions are impacted by the initial charge, prosecutors tend to overcharge cases to obtain an advantage in plea negotiations. If you retain our office early, we might persuade the prosecutor to charge an injury-related DUI as a misdemeanor case.
Fourth DUI Conviction within Ten Years
If you are convicted of DUI four times within a four (4) year period, this will also result in the most current DUI being charged as a felony. The risk of a felony for a subsequent DUI conviction is a reason to fight any DUI charge, which includes a first offense DUI.
Other California DUI Penalty Enhancements
There also are certain penalty enhancements that can increase the penalty for a DUI conviction. Example of facts and circumstances that may result in penalty enhancements beyond the more severe charges above include:
If you or a family member has been arrested for an alcohol-related driving offense in Riverside, San Bernardino, or another Southern California county, our experienced Inland Empire DUI attorneys provide an aggressive DUI defense strategy on your behalf. If you are in jail or consider your situation time sensitive, you should let the receptionist know, so we can respond promptly to your urgent request.
There also are certain penalty enhancements that can increase the penalty for a DUI conviction. Example of facts and circumstances that may result in penalty enhancements beyond the more severe charges above include:
- Speeding and Reckless Driving
- Endangering a Child Passenger (Under age 14)
- Accident without Serious Injury
- BAC Level Above 20 percent (15 percent discretionary)
If you or a family member has been arrested for an alcohol-related driving offense in Riverside, San Bernardino, or another Southern California county, our experienced Inland Empire DUI attorneys provide an aggressive DUI defense strategy on your behalf. If you are in jail or consider your situation time sensitive, you should let the receptionist know, so we can respond promptly to your urgent request.