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California Vehicle Code 23152(b)

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 attorne
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.

AB-762 or AB-768 (6 month- First Offense DUI program)

The AB-762 or AB-768 is an enhanced program for a first offense DUI conviction, which is commonly offered by prosecutors when someone’s alleged BAC level is above .15%, but below .20%. This six month program is more expensive and more extensive than the 3 month program. It is crucial to have an attorney that understands the science related to alcohol absorption and how it may impact the BAC results by the time someone is tested at the station or hospital. An attorney at The Law Office of Ben Mironer knows how to persuade prosecutors to strike this enhancement and requirement.

This program is required only by the court, even though it does satisfy the DMV requirement (which is only the 3-month alcohol program when below .20% BAC). This means you do NOT have to take both, unless you complete the 3 month AB-541 for the DMV APS suspension, and then you’re later convicted in court and required to complete the six month program for court. We do our best to prevent errors like that from happening because we care about our clients and we know the consequences of the law. We use our knowledge and compassion, to take the time to explain every aspect of the case to our clients. This helps reduce any miscommunications and errors, like the example above.

Out of state residents may be permitted upon request to complete this requirement with an online program or an equivalent in their home state.

An attorney from our office remains available to our clients, even after their case resolves. We ensure they are aware of deadlines and all of the requirements from the DMV and from the Court. We are always there to provide answers to any questions they may have down the road.

 

AB-1353 (9 month- First Offense DUI program)

The AB-1353 is an enhanced program for a first offense DUI conviction, which is statutorily required if the person admits to the special allegation of have a BAC of .20% or higher at the time of driving. This is a serious DUI enhancement because instead of a 3-month alcohol program (AB-541), the person must endure a 9-month alcohol program. This is when it becomes critical to have good representation in your case. We have been very successful in getting this enhancement stricken from the complaint, and our clients did not have to do the 9-month alcohol program. An attorney from our office can explain to you how scientifically just because a person has a chemical test result that was above .20% BAC, was not necessarily even close to that level at the time of driving. We can also explain to you why the chemical test result itself may be unreliable for its accuracy.

An attorney from our office can really impact your case, and possibly save you a lot of time and money by persuading a prosecutor to strike this enhancement. If someone admits to this special allegation they must complete the 9-month alcohol program for the Court and for the DMV. They are not permitted to get their full valid driver’s license until they provide the Court and the DMV with proof of completion of the AB-1353. An attorney from our office remains available to our clients, even after their case resolves. We ensure that our clients are aware of deadlines and all of the requirements from the DMV, and from the Court. We are always there to provide answers to any questions they may have down the road.

Out of state residents may be permitted upon request to complete this requirement with an online program or an equivalent in their home state.

 

SB-38 (18 month – Second Offense DUI and Third Offense DUI program)

The SB-38 is the standard program for a Second Offense DUI conviction. It is also common in the Third Offense DUI and permitted in a Fourth Offense DUI conviction as well. This is also known as the “Multiple Offender Alcohol Program.” This program is a statutory requirement on any multiple offense DUI. Someone who is convicted of a DUI with a prior may apply for a restricted license, with the installation of an ignition interlock device, and proof of enrollment in the SB-38 alcohol program. In order to avoid the 18-month alcohol program, the DUI charges must be reduced to at least a Wet Reckless Driving, instead of a DUI with a prior.

An attorney from our office can really impact your case, and possibly save you a lot of time and money by persuading a prosecutor or the Court to strike a prior conviction, or to reduce the charges from a DUI. Otherwise, someone who’s convicted of a DUI with a prior, or with priors, must complete the 18-month alcohol program for the Court and for the DMV. They are not permitted to get their full valid driver’s license until they provide the Court and the DMV with proof of completion of the AB-1353.

An attorney from our office remains available to our clients, even after their case resolves. We ensure that our clients are aware of deadlines and all of the requirements from the DMV, and from the Court. We are always there to provide answers to any questions they may have down the road.

 

30 month – Third Offense DUI program and Fourth Offense DUI program

The 30-month alcohol program is a special program that may be requested by your attorney and permitted by the Judge. If you are charged with a Third Offense DUI or Fourth Offense DUI, it is important to know your rights, and to have an attorney with the experience and expertise to advise you, and recommend the best option for you. At the Law Office of Ben Mironer, we have a proven track record of success in working with prosecutors and Judges, to get our clients into a 30 month program, instead of spending lots of time in jail. The permits the Judge discretion to order what’s known as a “30 and 30,” which is a 30 month program and 30 days in jail, instead of the 120 days in jail mandatory minimum for a Third Offense DUI.

In a Fourth Offense DUI, it is important to have an attorney that can either utilize attendance in a 30-month alcohol program, or can help you avoid doing a 30-month alcohol program when you’re only required to do an 18-month program. The Judge has discretion to order the 30-month program in any third or subsequent DUI conviction.

 

SB-1176 (12-hour Wet Reckless Driving Program)

The only required program for a conviction of Wet Reckless Driving, is the SB-1176 alcohol program. This is a 12-hour program, but can approximately 6 weeks or longer. Also, it is important to note that the DMV will still require an AB-541 program, if they suspend someone’s driver’s license after the APS hearing. The Law Office of Ben Mironer provides our clients with top-notch legal representation in the field of DUI because we know all of these subtle nuances. We keep our clients well informed and educated about their case, their defenses, and the various options they have.

Out of state residents may be permitted upon request to complete this requirement with an online program or an equivalent in their home state.

We always help our clients weigh their choices, and we take the time to discuss the different ways that certain consequences may impact their lives. An attorney from our office remains available to our clients, even after their case resolves. We ensure that our clients are aware of deadlines and all of the requirements from the DMV, and from the Court. We are always there to provide answers to any questions they may have down the road.