Misdemeanor DUI Elements

When someone is arrested for a misdemeanor DUI, they are usually charged with two separate and distinct charges: violating California Vehicle Code 23152 (a), and also violating 23152 (b). In a very real sense, these charges are related, since conviction for either one of them will result in a DUI conviction. However, each of these allegations relies on a very different theory to demonstrate guilt, and there are very different types of defenses that apply to each.

Vehicle Code 23152 (a) is the crime of being under the influence of alcohol. Vehicle Code section 23152 (b) is the crime of having a blood or breath alcohol level of .08% or more at the time of driving. These two charges must be considered individually, since they will be prosecuted individually, and must be defended individually.

23152 (a) – The “A” Count
In order to be convicted of violating 23152 (a), the prosecution must prove, beyond a reasonable doubt, that:

• The defendant drove a vehicle; and
• That at the time they drove, they were under the influence of an alcoholic beverage or a drug (or the combined influence of an alcohol beverage and a drug).

While this may seem simple enough, it really isn’t. This then begs the question: How do we define what it means to be “under the influence”? If it is illegal to be under the influence of alcohol or drugs, what exactly must be shown?

A person is “under the influence” for these purposes if, as a result of consuming alcohol or drugs, their mental or physical abilities are so impaired that that they are no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

What is noteworthy is that violating this law, and therefore being convicted of misdemeanor DUI, does not require any particular alcohol level at the time of driving. It merely requires meeting the definition for being under the influence at the time of driving.

Conversely, the charge of violating Vehicle Code section 23152 (b) does not require the driver to be in any particular impaired condition at all. It is an attempt by the legislature to draw a bright-line rule around blood or breath levels.

23152 (b) – The “B” Count
To be convicted of violating 23152 (b), the prosecutor does not need to show any level of impairment. What is requires is proof beyond a reasonable doubt that:

• The defendant drove a vehicle; and
• At the time they drove the vehicle, the defendant’s blood alcohol level was 0.08 percent or more by weight.

This is a mirror image of 23152 (a). In the “A” count, the prosecutor is only concerned with the driver’s condition as being impaired. There is no requirement that the driver be at any particular alcohol level for this to be the case. In the “B” count, the prosecutor is only concerned with alcohol level; if the driver has a high level of tolerance – the ability to mask the symptoms of impairment – the prosecutor doesn’t care for purposes of this charge. It is based purely on science.

While this may appear to be straightforward, just like with the A count, there are key issues for the defense to raise around timing (it is illegal to drive with a .08% or higher, but alcohol levels change over time, and breath and blood tests happen long after driving is done), whether the chemical testing device was properly functioning, whether the operator was properly trained, whether the test was performed properly in accordance with that training, and many others.