VC 23152(a) – California Driving Under the Influence

California DUI – Table of Contents

• VC 23152(a) Overview
• VC 23152(a) Elements
• VC 23152(a) Sentencing
• VC 23152(a) Defending
• California Impaired Driving – Hire Us

What is a California Vehicle Code 23152(a) Charge?

California Vehicle Code 23152(a) deals with the offense of driving under the influence of alcohol or drugs. California law states:

(a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.

In other words, the law prohibits driving after consuming a certain amount of alcohol that may impair your ability to safely operate the vehicle.

Unlike some of the more verbose and convoluted criminal codes in California Vehicle Code 23152(a), the straightforward simplicity of Vehicle Code 23152(a) is refreshing. However, we still face some ambiguities. What exactly does it mean to be “driving under the influence of an alcoholic beverage”?

To begin, we need to first look at what ‘driving under the influence’ means legally. As defined in the Judicial Council of California’s Criminal Jury Instructions, for determining culpability in a criminal proceeding, an individual is driving under the influence of alcohol or drugs if, as a result of drinking or consuming an alcoholic beverage, taking a drug, or some combination of both, the individual’s 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.”

Another useful definition for understanding this charge is “alcoholic beverage.” Although this may seem straightforward, given that language is often manipulated to suit the law’s specific purposes, it’s always important to define such terms outside of their common usage in ordinary parlance. According to the Jury Instructions, an alcoholic beverage means, “a liquid or solid material intended to be consumed that contains ethanol. Ethanol is also known as ethyl alcohol, drinking alcohol, or alcohol.” This rather dry definition illustrates the need for legal definitions to be as specific as possible.

California VC 23152(a) is almost always charged in conjunction with its technical counterpart:

California Vehicle Code § 23152(b):

(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.

But, since an individual can be charged with just VC § 23152(a), considering they could have a blood alcohol content (BAC) below 0.08 but still be driving under the influence of alcohol or drug under the legal definition laid out in subsection (a), we will only examine VC § 23152(a) here. VC § 23152(a) is what is known as the “subjective” misdemeanor for driving under the influence of alcohol or drug, as opposed to the “per se” offense that is covered under VC § 23152(b). VC § 23152(b) will be examined in depth on its own. Ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances”.

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What are the Elements of California VC 23152(a)?

In order to find an individual guilty of driving under the influence of alcohol or drug under the definition provided in California Vehicle Code § 23152(a), two main elements must be proven as noted in the Judicial Council of California’s Criminal Jury Instructions. In order to prove that an individual is guilty of the subjective misdemeanor offense of driving under the influence of alcohol, the prosecutor needs to establish two things:

1. That the individual was in fact driving the motor vehicle; AND
2. That the individual was driving under the influence of alcohol at the time of said driving.

Both of these two elements are essential to the prosecutor’s case. If either is lacking, then the individual must be found not guilty. As this is the subjective crime, as opposed to the per se crime in California Vehicle Code § 23152(b) VC which is more straightforward (though still open to myriad interpretations), perspective and opinion are relevant to the determination. What this means is that a totality of the circumstances approach is often taken when examining the evidence available in a driving under the influence of alcohol case. As noted in the Jury Instructions:

The manner in which a person drives is not enough by itself to establish whether the person is or is not driving 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 driving under the influence of alcohol or drug.

This “factor to be considered” language is indicative of the type of analysis at work here. Because driving under the influence of alcohol is highly subjective and looks to a number of factors, it is also a crime with a substantial amount of leeway in crafting a defense. A large amount of circumstantial evidence is often used by both the prosecution and the defense in presenting their side.

Like with the rest of the crime of driving under the influence alcohol or drug, even something as seemingly simple as “driving” can be more complex. What is meant by driving the vehicle? How does the officer involved know if an individual was in fact driving the vehicle or not? For example, if an officer comes across a seemingly intoxicated individual sleeping in their vehicle, can they really correctly infer that the individual was driving the vehicle while driving under the influence alcohol? Or drug, similarly, what if an individual is in their vehicle with the engine running but not actively driving the vehicle? These, and a plethora of other scenarios, come up regularly in driving under the influence cases. The prosecution must prove actual operation, or driving the vehicle, of the motor vehicle. Being inside the vehicle is not enough. The use of circumstantial evidence is key in driving under the influence cases. As noted in Mercer v. Dept. of Motor Vehicles, using circumstantial evidence is entirely proper to determine whether or not some movement of the vehicle has in fact taken place. 53 Cal.3d 753, 770 (1991).

Because California Vehicle Code § 23152(a) VC is a subjective offense, the prosecution will use all available tools at their disposal to craft a narrative of driving under the influence alcohol or drug. This narrative will rely heavily on the arresting officer’s report and testimony of the incident. This report and testimony will provide the bedrock upon which the rest of the prosecution’s case will rest. This report and testimony will include their observations about the individual’s driving pattern and any irregularities in such driving (such as failure to maintain a lane), the individual’s physical appearance (such as red eyes, alcohol on the breath, and slurred speech), and the individual’s performance on the field sobriety test. Again, as all of this is based in anecdotal observation as provided by the officer, it can be attacked in the same way by the defense.

What are the Penalties for California VC 23152(a)?

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Though increasingly viewed as a serious and reckless infraction by society, most DUI Vehicle Code 23152(a) offenses are prosecuted as misdemeanors and not as felonies. In fact, most first, second, and third DUIs will be charged as misdemeanors. However, if an individual does rack up four DUIs in a ten-year period, this will generally convert these to felonies we used a dedicated call tracking number in our GMB listing. Here are the results: charges for the fourth offense and beyond. In addition, if an individual causes bodily injury as part of the DUI, this can also influence the determination of whether or not to prosecute it as a misdemeanor or a felony offense.

For a Misdemeanor Driving Under the Influence Charge, generally speaking, an individual will be looking at a maximum sentence of six months in county jail (or up to one year for a second or third offense), a fine of between $390 to $1,000, mandatory participation in court-approved DUI class for between three to nine months, and informal probation for three to five years.

How Do You Defend Against This Charge?

In addition to using the circumstantial evidence to cast doubt as to whether the individual was in fact driving the vehicle or operating the vehicle in question as discussed above, another way to defend against such a charge is to call into question the second element: the alcohol. As the officer will be providing his subjective observations about the individual’s driving, whether it is failure to maintain their lane or excessively fast or slow speed, not to mention the individual’s performance during the field sobriety test, and how these are caused by the use of alcohol, it is important to establish the fact that alcohol does not necessarily play a role in these driving irregularities. There are plenty of people who drive in this way who are not driving under the influence of alcohol or drug.

Likewise, the visual cues the officer will be pointing to establish intoxication, such as flushed features, red eyes, and slurred speech, are not always, definitively caused by alcohol consumption. There are many other external and internal factors that could cause these symptoms, such as allergies, sunburn, extreme fatigue, chronic dry eyes, and numerous other health problems.

Another good defense is to attack the field sobriety test, especially the manner in which the test was administered by the officer. These tests are meant to be given on flat, dry surfaces, however, they are often done on uneven, debris-filled sidewalks or cracked asphalt. Given that these tests are meant to establish balance, if the test is not administered properly, then this could be a good way to attack the results. Also, the validity of the Horizontal Gaze Nystagmus test (which is meant to determine at what angle the individual’s pupils begin to exhibit jerking while following an object’s path) has been called into question with only a 77% reliability. While seemingly high, this near-quarter fail rate can be useful to cast doubt on this test.

This is not a complete list of all of the defenses available, some of which will largely depend on the specific fact pattern of the case under consideration. Speaking with an experienced criminal defense attorney who handles DUI cases is the best way to figure out the best defense for an individual’s specific fact pattern and circumstances.

Reducing the Charge with a Plea Deal (Like Wet~Dry Wreckless)

However, driving under the influence charges are some of the most frequently reduced through DUI plea bargaining, and rarely ever go all the way to trial. This is good news, and can often result in a reduction of the above-mentioned penalties. The most common plea reached is to reduce the California Vehicle Code § 23152(a) VC to one of the following:

• “wet reckless” charge (California DUI Vehicle Code § 23103 per § 23103.5);
• “dry reckless” charge (California DUI Vehicle Code § 23103); and
• “exhibition of speed” charge (California DUI Vehicle Code § 23109(c)).

Each of these reduced charges carries with them a reduction in penalties as well.

We Want to Help

If you or a loved one has been charged with Vehicle Code 23152(a) in the Southern California area, we invite you to contact us immediately for a free case review.

Our experienced Los Angeles Criminal Defense Attorneys will be sure to fight until the end to reduce or drop your charges completely.

Call Us for a FREE Case Review: 213-932-8922

Related Article:
• How to Defend Against a DUI: Beat The Charge

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