Driving Under the Influence of Alcohol or Drugs California Vehicle Code (CVC) §23152(a)
If you or a loved one have been arrested and charged with Driving Under the Influence of Alcohol or Drugs (DUI) it is critical that you consult with an Attorney, like The Law Offices of Bryan R. Kazarian as soon as possible.
What is a DUI?
A DUI charge is the offense of driving a vehicle while “under the influence” of alcohol or a controlled substance. Most commonly, a person will be charged with a DUI if they are driving with a blood alcohol content of 0.08 percent or higher. A person is “under the influence” after consuming some substance, such that their physical or mental abilities are impaired so much that they are not able to drive a vehicle with caution, in the same manner as a sober person would.
It is illegal to drive a vehicle: automobile, motorcycle, or bicycle (even if not being pedaled at the time the officer pulls you over) while under the influence of alcohol. The sad truth is that most people believe that after drinking a beer or two, they are under the legal limit of 0.08 they can lawfully drive. Sadly, they may be wrong. Those whose Blood Alcohol Content or Concentration (BAC) of 0.08 or above are usually charged by law enforcement officers with not one but two crimes:
1. California Vehicle Code (CVC) § 23152 (a)
2. California Vehicle Code (CVC) § 23152 (b)
Proving a DUI has occurred
In order for a prosecutor to prove that a defendant has committed the crime of Driving Under the Influence, they will typically attempt to prove each of the two counts, CVC 23152 A and B.
This means that the following elements of each crime must be met:
California Vehicle Code (CVC) § 23152 (a)
1. The defendant drove a vehicle;
2. When (he/she) drove, the defendant was under the inﬂuence of
(an alcoholic beverage/ [or] a drug) [or under the combined effects thereof]
California Vehicle Code (CVC) § 23152 (b)
1. The defendant drove a vehicle;
2. When (he/she) drove, the defendant’s blood alcohol level was
0.08 percent or more by weight
In order to be convicted of either charge, the Prosecutor must prove each of these elements at Trial. The experienced attorneys at the Law offices of Bryan R. Kazarian are very familiar and knowledgeable in what amounts to probable cause and what is a Fourth Amendment violation. Without probable cause for the traffic stop the DUI charged can be dropped as an unlawful search and seizure.
Most DUI arrests arise from an initial traffic stop or a sobriety checkpoint where a law enforcement officer looks for symptoms of intoxication. Based on the officer’s observations, including smelling the odor of alcohol, he or she will compel you to perform a few “field sobriety tests” to determine if you are under the influence. You are not required by law to submit to any field sobriety test. However, if you refuse, the officer will likely arrest you.
Blood or Breath?
They may also ask you to submit a sample of either your blood or your breath. If you refuse to do that, the officer will complete DMV forms which state you refused to provide a sample and your license will be suspended. While you do have a choice as to the type of sample you provide, an outright refusal will lead to a 1 year license suspension and could lead to the filing of an enhancement under CVC 23612.
DMV License Suspension
Regardless of what happens after your stop, you must request a DMV hearing within 10 days of the arrest to contest the suspension of your license. At that time, you must request a stay to the suspension, and set a date for a DMV Hearing to be conducted.
During that time, the suspension of your license is stayed, and the temporary license you were given at the time of your arrest remains valid, until the time of the hearing when the DMV makes a more permanent decision. If your DUI occurred on or after January 1, 2019, you may be able to obtain a restricted license right away, upon the installation of an Ignition Interlock Device (IID). As this is a relatively new law change, you should contact an Attorney to see if you may be able to partially restore your driving privilege by installing such a device in your car.
Defenses to DUI
A law enforcement officer must have probable cause to believe that the driver of a vehicle has violated the law to justify making the stop. Probable cause can be established by observation of any violation of the California Vehicle Code such as speeding or driving too slow, unsafe lane change, driving without lights on, or an equipment violation. Without probable cause the stop may have been illegal under the Fourth Amendment.
In the process of your arrest, the police may have violated one or more of your Constitutional rights. If this is the case, and the Court that hears your case agrees, then it is possible that some or all of the evidence in your case could be excluded. This can even result in the outright dismissal of the People’s case against you. If you believe that your Constitutional rights were violated when you were arrested, it is vital to contact an Attorney for a consultation.
The Prosecuting Attorney must prove that the Defendant actually drove a vehicle. If the arresting officer does not directly observe the vehicle in motion, this can be a very challenging proposition. They must establish that you were in fact the driver of the vehicle at the time that you were intoxicated in order for you to be convicted of a DUI under CVC 23152, and if they don’t observe that driving themselves they will have to rely on other means to show you were driving prior to their contact with you.
Blood Alcohol Content (BAC) Not Above 0.08%
Most DUI’s that are filed in the state of California are based on the results of blood or breath samples taken at the time of arrest. The simple truth is that at times the equipment used by the police may be damaged, not properly calibrated, or simply used improperly. It is important to review the calibration records, readings, and histories of any and all equipment used to establish the level of Blood Alcohol in the sample they took from you, as well as the procedures by which those samples were taken and analyzed.
A skilled attorney will know to review these and any other potential Defenses, and advise you as to your best course of action, given the evidence that will likely be presented should your case go to trial.
The Law Offices of Bryan R. Kazarian has local offices in Santa Ana, Westminster, Fullerton, and San Bernardino, to help assist you in your DUI case. Please do not hesitate to give The Law Offices of Bryan R. Kazarian a call. We are here to help!