Vehicle Code §23152

Commentary

Driving Under the Influence is the voluntary operation of a vehicle while under the influence of drugs, alcohol, or a combination.  A blood alcohol level above 0.08% creates a presumption that the person is under the influence, but a person can be found guilty even with a lower alcohol level.  Additional presumptions apply to commercial drivers and drivers for hire, which most likely will be interpreted to include ride-share services like Uber and Lyft.

Standard Punishment

One year

Relevant Statutes

Vehicle Code §23152

(a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.
(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.
For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.
(c) It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.
(d) It is unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210. In a prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.
(e) Commencing July 1, 2018, it shall be unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a motor vehicle when a passenger for hire is a passenger in the vehicle at the time of the offense. For purposes of this subdivision, “passenger for hire” means a passenger for whom consideration is contributed or expected as a condition of carriage in the vehicle, whether directly or indirectly flowing to the owner, operator, agent, or any other person having an interest in the vehicle. In a prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.
(f) It is unlawful for a person who is under the influence of any drug to drive a vehicle.
(g) It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.

Standard Jury Instruction

The jury will generally be instructed pursuant to CalCrim 2110 and Calcrim 2111, which are summarized as follows

 

The defendant is charged with driving under the influence of an alcoholic beverage or a drug or an alcoholic beverage and a drug in violation of Vehicle Code section 23152(a).

To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant drove a vehicle;
AND
2. When he drove, the defendant was under the influence of an alcoholic beverage or a drug or an alcoholic beverage and a drug.

A person is under the influence if, as a result of consuming an alcoholic beverage and/or taking a drug, his mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of an alcoholic beverage or a drug or under the combined influence of an alcoholic beverage and a drug. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.

An alcoholic beverage is a liquid or solid material intended to be consumed that contains ethanol. Ethanol is also known as ethyl alcohol, drinking alcohol, or alcohol. An alcoholic beverage includes wine, beer, vodka, and other such drinks.

A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.

If the People have proved beyond a reasonable doubt that the defendant’s blood alcohol level was 0.08 percent or more at the time of the chemical analysis, you may, but are not required to, conclude that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense.

In evaluating any test results in this case, you may consider whether or not the person administering the test or the agency maintaining the testing device followed the regulations of the California Department of Public Health.

It is not a defense that the defendant was legally entitled to use the drug.

If the defendant was under the influence of an alcoholic beverage and/or a drug, then it is not a defense that something else also impaired his ability to drive.

 

The defendant is charged with driving with a blood alcohol level of 0.08 percent or more in violation of Vehicle Code section 23152(b)].

To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a vehicle;
AND
2. When he drove, the defendant’s blood alcohol level was 0.08 percent or more by weight.

If the People have proved beyond a reasonable doubt that a sample of the defendant’s blood or breath was taken within three hours of the defendant’s alleged driving and that a chemical analysis of the sample
showed a blood alcohol level of 0.08 percent or more, you may, but are not required to, conclude that the defendant’s blood alcohol level was 0.08 percent or more at the time of the alleged offense.

In evaluating any test results in this case, you may consider whether or not the person administering the test or the agency maintaining the testing device followed the regulations of the California Department of Public Health.

Special Jury Instructions

The following case law may be of benefit in preparing special jury instructions to defend against a DUI charge.

Evidence that there was alcohol upon the breath of the defendant is not sufficient to prove that the defendant was under the influence of intoxicating liquor when he drove his automobile upon a public highway.
Authority: Linde v. Emmick, 16 Cal. App. 2d 676, 683, 61(1936).

Results of a blood, breath, or urine test “. . . are to be weighed and considered with all other evidence by the jury. . . , and even where a state has adopted certain alcoholic blood content figures as a basis for presumptions as to intoxication, such presumptions are not conclusive.”
Authority: Quoted language is from People v. Conterno, 170 Cal. App. 2d 817, 825 (1959).

The Vehicle Code provides that a person choosing to submit to a breath test must be advised that the breath sample cannot be saved and that he may take a urine or blood test so that something will be retained for analysis. A failure on the part of the officer to properly so advise the defendant may be considered by the jury “. . . as a factor bearing on the credibility of the officer and the accuracy of the breath test administered by the officer or at his direction.”
Authority: Vehicle Code § 23157.5 with quoted language from People v. Alvarado, 181 Cal. App. 3d 1, 5(1986).

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