Most people have the misconception that the legal limit to drive with alcohol in your system is anything below .08% BAC. However, many people are commonly charged with a DUI, even when their BAC is below .08%. The reason is because California Vehicle Code §23152(a) expresses that someone may be DUI simply by being under the influence of any alcoholic beverage and driving a vehicle. Furthermore, this statute makes it illegal to drive a vehicle while under the influence of a drug, or the combination of alcohol and drugs.
California Vehicle Code § 23152(a) states, “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.”
This means that a prosecutor can charge you with a DUI, even if your BAC was “below” .08%. The statute simply says under the influence, which is a very ambiguous term. A trained DUI attorney, that has litigated trials, knows that it is important to know the jury instructions in order to truly understand the charges.
CalCrim Jury Instruction No. 2110 states, “A person is under the influence if, as a result of drinking or consuming an alcoholic beverage, his or her 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 key is that a prosecutor must prove beyond a reasonable doubt that someone is so impaired, they couldn’t drive with the same caution and care as a sober person, under similar circumstances. A good DUI attorney can explain to a jury or a prosecutor that anyone who’s driven on the roads of Los Angeles knows that even sober drivers constantly do dangerous maneuvers in everyday normal driving. Even though alcohol related accident rates are high, most traffic accidents that occur are actually with drivers that are sober. For someone to be so impaired they couldn’t drive with that same caution and care as a sober person, it would mean that the prosecutor has evidence of very dangerous driving.
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Another important factor to consider, which every expert must ethically agree with, is that mental impairment must come before physical impairment. This is critical because most people that allegedly fail their field sobriety tests, usually exhibit strong mental awareness in following directions and understanding instructions. If physical impairment exists, without mental impairment, then it must be due to something other than alcohol impairment.
California Vehicle Code § 23577 - This statute is an enhancement for a “Refusal” to submit to a chemical test, or willfully failing to complete a chemical test. Sometimes, the officer will mark a case as a Refusal, even if you attempted to blow into the breathalyzer, but didn’t register a valid result.
California’s Implied Consent Law, California Vehicle Code § 23612, is triggered upon a DUI arrest. A licensed driver must submit to a breath or blood test, and must be properly admonished as to this requirement by the officer administering the test. The arresting officer will generally read a statement verbatim which explains this requirement and the consequences for failing to submit to a test. The two main consequences they MUST mention is that voluntarily failing to submit to a test will result in a one year driver’s license suspension, and that the refusal will be used against you in court as an admission of guilt.
CalCrim Jury Instruction No. 2130. Refusal - Consciousness of Guilt - This jury instruction expresses to the jury, “If the defendant refused to submit to such a test after a peace officer asked him/her to do so and explained the test’s nature to the defendant, then the defendant’s conduct may show that he/she was aware of his/her guilt.” This means the jury can decide whether the defendant’s conduct shows they were aware of their guilt. The instruction goes on to explain that the importance and meaning of the refusal is up to the juror to decide, and that “evidence that the defendant refused to submit to such a test cannot prove guilt by itself.”
This is a very important concept to understand in all refusal cases, simply because these cases tend to have the least amount of evidence to prove beyond a reasonable doubt someone was DUI. The prosecutor’s problem is they don’t have any chemical test result showing a BAC of 0.08 or more, so all they have is the surrounding investigation that they did. The less evidence the prosecutor has, the more difficult it becomes to prove DUI beyond a reasonable doubt.
In most DUI cases, the BAC results are .08% or above, and a common public misconception is that this means you must be guilty of a DUI. Breathalyzer devices both in the field and at the station are maintained and calibrated according to Title 17 guidelines, and these records are provided upon request to the DUI attorney.
California Vehicle Code § 23152(b) states, “It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”
Most prosecutors know that if the case goes to trial, and the person is charged with both VC §§ 23152(a) and (b), then they really only need to convince the jury to convict on one of the charges. For example, if a jury finds a defendant Not Guilty on the (a) count, but Guilty on the (b) count, that person will be convicted of a Misdemeanor DUI, and will suffer the same consequences as if they were convicted of both charges.
A DUI attorney knows that both charges are equally as important, and that a “split verdict” as described above, does not help their client. Thus, it is important for an attorney to understand the science involved in DUI charges, when the allegation is that the BAC was .08% or above. This is really the only way to challenge a prosecutor and their expert forensic toxicologist in court.
CalCrim Jury Instruction No. 2111 states, “If the People have proved beyond a reasonable doubt that a sample of the defendant’s 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.”
This instruction essentially means that the jury can presume someone was 0.08 percent or more at the time of driving, if the prosecutor proved they were 0.08 percent or more at the time of testing. It is critical that your DUI attorney knows and understands the case law behind this presumption. The case law describes this language as a “permissive inference,” which means that this presumption may be rebutted by scientific facts presented by the defense. Furthermore, this specific portion of the instruction may be stricken, which means never even read to the jury. But, you need a good DUI attorney that is well prepared to spot these issues, and to argue these fine points that can make or break your case.
California Vehicle Code § 23152(e) states, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.”
California Vehicle Code § 23152(f) states, “It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.”
The bottom line is that an untrained attorney doesn’t stand a chance, if they don’t understand how the body works in conjunction with the consumption of alcohol or drugs, the various weaknesses in present day field sobriety and chemical testing by law enforcement in California, and the current case law related to the field of DUI.
However, a trained DUI attorney knows lots of scientific facts on their side that tend to reoccur in DUI cases. Issues about the “inherent” lack of scientific reliability in both breath and blood testing, the poor methods of testing and imprecise devices used by law enforcement, false-high BAC readings during the absorptive phase, consumption of food delaying the absorption of alcohol, delays in chemical testing while rising BAC, poor blood sample preservation techniques and fermentation, numerous peer-reviewed articles, and scientific studies supporting the lack of reliability in chemical testing used by California law enforcement officers.
It is important for every client at The Law Office of Ben Mironer to understand the charges against them and all of their possible defenses. We bring peace of mind by educating our client’s as to the science, as well as the substantive legal issues behind their DUI defense. The only way to ease your mind, after a DUI arrest, is to hire an attorney that can show you a level of expertise that makes you feel like you’re in good hands.