If you have been arrested for DUI you probably had your license taken by the police and were given a pink temporary license along with a ticket showing a violation of Vehicle Code Section 23152(a) and 23152(b).
23152(a) requires the prosecutor to show evidence that you acted and/or showed signs of intoxication which beyond a reasonable doubt show you were driving under the influence of alcohol. A person can be below a .08 and still be convicted for DUI if the facts surrounding the arrest show there was impaired driving.
First, it must be shown that you were driving. There are countless circumstances where the police make an arrest even though they never actually saw the arrested person driving. The prosecutor must prove driving.
Under 23152(a), it must be shown that you were under the influence. This means that you were not able to drive with the "caution characteristic of a sober person of ordinary prudence under the same or similar circumstances." This is why the police ask you to perform roadside sobriety tests, so they can acquire evidence of impairment. This subjective test is different to everyone, and open to interpretation. As such, this is open to a strong defense.
Under 23152(b), the prosecution must show you had 0.08 percent or more, by weight, of alcohol in your blood while you drove the vehicle. The 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. there 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.
As you can see there are many elements to 23152(b). This is the "per se" rule that most people are familiar with. However, just because you were found to have a .08 BAC, does not necessarily mean it was .08 at the time you drove the vehicle. This too can be challenged. Furthermore, the breath machines can be challenged and you have the right to have your own scientist read the results of the blood test. You don't have to simply accept what the government says.
There are countless situations where police make an arrest without ever witnessing driving. We have successfully handled many cases where people were asleep in the vehicle and no driving occurred, police arrived to the scene of an accident and never saw any driving, or acted on information provided by others when arresting someone not even in a vehicle. If there was no driving there can be no conviction for DUI.
Field Sobriety Tests can be challenged. Many times the officers do not conduct the field sobriety tests appropriately, or perhaps they did not describe the tests correctly. The National Highway Traffic Association has conducted many tests which have laid the framework for proper testing. The officers must follow the precise guidelines or the tests are useless. Furthermore, the tests are subject to many outside factors that can affect a person's performance on these very difficult roadside tests. These arguments must be presented with legal reasoning, but can be successful in fighting DUI charges.
Blood Alcohol Content is also subject to challenge. The guidelines for proper testing are found in California Code of Regulations, Title 17. Police must follow the regulations or the results are not admissible and are not reliable. You have the right to challenge the accuracy of the breath machines and whether the police followed the procedures required in the code.
It is unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. A person under 21 can be convicted by this "per se" law at .05 BAC. However, a minor is still subject to the same DUI laws as adults as described in vehicle codes 23152(a) and (b).
The same defenses apply to the laws pertaining to minors.
Many times people are arrested for driving after taking prescription medication. Vehicle Code 23152 also deals explains charges for driving under the influence of drugs: "(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."
In order to be convicted of this charge the prosecution must prove that you were driving while under the influence of a drug. The prosecution will rely on the testimony of the police officers who will conduct Field Sobriety Tests in an effort to collect information that can be presented in court to prove intoxication. Again, the police must follow the guidelines and procedures outlined by the National Highway Traffic Safety Administration when conducting these tests or they are not reliable. Your blood can be retested, you do not simply have to accept the government's results. Furthermore, experts can testify to the influence and affects of drugs and whether the amount in the blood would have an influence on the ability to drive.