Driving under the influence or DUI in California generally involves operating a motor vehicle while being “under the influence” of alcohol, drugs or both. However, DUI law is a very technical and science intensive area of law and it is simply not the case that “drinking and driving” is illegal. There are many defenses available in a DUI case and nobody arrested for DUI should simply assume they are “guilty” because they allegedly tested above a certain blood alcohol threshold. Not properly fighting a DUI allegation could lead to loss of license, loss of employment, potential jail time, and potential immigration problems in certain cases.
The first thing to understand about a DUI in California is that are two basic processes following a DUI arrest: the criminal court process (which potentially issues criminal penalties and affects one’s criminal record); and the DMV process (which controls one’s legal privilege to operate a motor vehicle following a DUI allegation).
Generally, when someone is arrested for a DUI, the prosecutor will charge two different but related offenses: California Vehicle Code Section 23152(a) and California Penal Code Section 23152(b).
The “(a) count” relates to an allegation of someone driving “under the influence of alcohol”, regardless of the actual measured level of alcohol as revealed by a breathalyzer or blood test.
So, it is possible, in theory, to be guilty of 23152(a) even if the measured blood alcohol level is below the legal limit (which is 0.08) and it is also possible to be not guilty of 23152(a) even if the measured blood alcohol level is at least 0.08. “Under the influence” of alcohol basically means you are objectively too intoxicated to safely operate a motor vehicle. This is proven by looking at “objective” symptoms of intoxication including but not limited to: one’s ability to follow and understand instructions, ability to perform various “field sobriety tests”, unsteady gait in walking, slurred speech, pupil dilation and behavior, and many other factors.
To be clear, the “science” related to objective symptoms of intoxication is a matter of extreme debate to say the least and I regularly employ some the best experts in the field to prove that allegations related to California Vehicle Code 23152(a) are unproven or totally bogus.
The other common charge in DUI prosecutions is California Vehicle Code Section 23152(b) which relates to a “per se” violation of a California DUI law because your blood alcohol level is alleged to be at or in excess of 0.08 blood alcohol by volume. One’s blood alcohol level is measured either by use of a breathalyzer or a blood test following arrest. There are many problems and technical complications with both methods of testing. Suffice to say that the mere “fact” that your blood alcohol level when tested is alleged to be at a certain level does not begin to prove that when driving your blood alcohol level was at or in excess of 0.08 by volume.
One basic issue that often arises in defense of 23152(b) cases is that it is not a violation of law to be tested with a blood alcohol level at or in excess of 0.08; it is a violation of law to drive at or in excess of 0.08. The difference is subtle but often very important: alcohol blood levels rise and fall following consumption in relatively predictable ways if one knows when and how much alcohol one consumed but there is no reliable to know the timing of the arrestee’s drinking pattern, so it is as possible that one’s blood alcohol is still “rising” as opposed to “falling” after being pulled over for a DUI. Thus, one’s measured alcohol test, often conducted over an hour after driving, may overestimate one’s blood alcohol level at the time of driving.
I have been very successful, through the use of experts, in utilizing the “rising blood alcohol defense” to have charges dismissed or reduced. There are many other potential defenses to DUI, all of which I have successfully raised at the pre-trial as well as the trial stage in successful representation of DUI cases.
With regard to the DMV, an arrestee is usually issued a temporary license following a DUI arrest that lasts for only 30 days. Someone arrested for a DUI should immediately contact an attorney so that he can schedule a DMV within 10 days, otherwise the arrestee will face automatic license suspension which can have devastating consequences for one’s job. Once the DMV hearing is scheduled, the DMV will consider much the same issues that the criminal court does with regard to the DUI. Basically, the DMV will consider whether the stop or detention was legal and whether the arrestee’s blood alcohol level was at or above 0.08 alcohol by volume.
I have extensive knowledge and experience in the area of DUI. I have handled thousands of DUI cases from basic first time DUIs, multiple DUIs, DUI with injury, and DUI with death. It is extremely important that everyone arrested for DUI take a DUI seriously and hire an attorney who is committed to keeping up to date on the changing science related DUI, has a network of DUI experts who can help with the science of DUI, and who has done plenty of DUI trials. Additionally, I am very experienced in avoiding any immigration and job consequences that can result from a DUI arrest. All DUIs should be fought vigorously with the intent to achieve a good outcome.
If you want to achieve victory in your DUI case, call Vijay Law for a consultation @ (408) 313-5607.
