A DUI arrest begins a criminal case against the driver.
In Alameda County, after police make a DUI arrest, the arresting officer will write a report. After completing his/her report, the officer will file it with the Alameda County District Attorney’s office.
Once the chemical tests are finished, the test results will be attached to the report. A senior deputy district attorney will review the police report and test results and determine what charges, if any, to file. If the deputy district attorney determines that charges should be filed, the deputy district attorney prepares a “complaint.” A “complaint” is the document that lists what crimes the district attorney’s office claims that a person committed. A complaint is not evidence; it is merely an accusation. The complaint is filed in the Alameda County clerk’s office.
When the person appears in court the first time, this court session is called “an arraignment”. The arraignment is to inform the person that he/she is now accused of a crime or crimes, and what the crime or crimes are. In addition, if the person has an attorney, the attorney will receive the “discovery”, the police reports and test results.
In a typical Alameda County l DUI case, the complaint has two counts (charges).
The first count (charge) is a violation of California Vehicle Code Section 23152(a).
The second count (charge) is a violation of California Vehicle Code Section 23152(b).
By having two different counts (charges), the prosecution has two opportunities in a typical DUI case to obtain a conviction. Count one, the 23152(a) charge, alleges that the person drove under the influence of an alcoholic beverage or drug or both. There is no mention of any blood level alcohol, unlike count two, 23152(b), which states that the driver drove with a blood level alcohol of .08 or higher.
The prosecution will try to prove count one, a violation of 23152(a) by typically showing that impairment by a combination of the following:
- The person’s driving before being stopped by police
- The person’s demeanor/speech/appearance after being stopped by police
- The person’s performance on the so called field sobriety tests
- The person’s conduct with police after arrest
A person is under the influence if, as a result of drinking an alcoholic beverage and/or taking a drug, his or her mental or physical abilities are so appreciably 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.
Here are some examples of a police officer’s observation of a person’s driving to show impairment to support a charge of VC 23152(a): swerving, weaving, causing an accident, or running a red light.
The manner in which a person drives is not enough by itself to establish whether or not the person is under the influence of an alcoholic beverage or drug. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.
Please note: Vehicle Code Section 23152(a) prohibits that the person driving under the influence of an alcoholic beverage or drug or both. I highlighted “or drug or both”, after you read the complaint (charges) that typically contain count one (VC 23152a—driving under the influence of alcohol or drugs or both), you many not understand why the prosecutor is charging you with having used drugs if you just consumed only alcohol. That language does not necessarily mean that someone is accusing you of having driven after using drugs. The prosecutor in drafting the complaint (charges) merely mirrors the language of 23152(a), which prohibits driving under the influence of alcohol OR drugs OR a combination of both.
If a driver drove a vehicle after consuming only drugs, and was appreciably impaired to the point of not being able to safely drive a motor vehicle with the same caution as a sober person, that driver could face a DUI based only on drugs.
A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain or muscles of a person that it would appreciably impair his or her ability to drive as an ordinary cautious person, in full possession of his or faculties and using reasonable care, would drive under similar circumstances. The impairment must be (1) caused by the drug and (2) appreciable.
Please note: the term “drug” encompasses both legal (over the counter and prescription) and illegal drugs. It is not a defense that the driver was legally entitled to use the drug (VC Section 23630).
The person charged with a prescription DUI should endeavor to show that the dosage was within prescribed limits (therapeutic range) and/or any aberrant behavior (ie accident) was a result of an unforeseen side effect.
In addition, if the driver was under the influence of alcohol and/or drugs, then it is not a defense that something else also impaired his/her ability to drive, such as lack of sleep, an epileptic seizure or inattention.
Example of illegal drugs:
- Marijuana (only active form of marijuana, delta-9 THC and not delta-9 carboxy TCH, may cause impairment)
- Methamphetamine (detection from one to four days or more, depending on frequency and amount used)
- Cocaine (detection from two to four days or more, depending on frequency and amount used)
The prosecution will try to prove count two, a violation of 23152(b) by showing that the driver drove with a blood level alcohol of .08 or higher.
Vehicle Code Section 23610 (a) provides:
The amount of alcohol in a person’s blood at the time of the test as shown by the chemical analysis of the person’s blood, breath or urine shall give rise to the following presumptions affecting the burden of proof:
(1) If there was at that time less than .05%, by weight, of alcohol in a person’s blood, it shall be presumed that the person was NOT under the influence at the time of the alleged offense;
(2) If there was at that time .05% or more but less than .08%, by weight, of alcohol in the person’s blood, that fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense;
(3) If there was at that time .08% or more, by weight, of alcohol in the person’s blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense.
If the prosecution proves beyond a reasonable doubt that the driver’s blood alcohol level was .08% or more at the time of driving, the jury may but is not required to, conclude that the driver was under the influence of an alcoholic beverage at the time of the offense. Unlike 23152(b) which has a three hour limit, there is no time limit for the administration of the alcohol test for 23152(a). Instead, the test must be incidental to both the offense and arrest, and no substantial time should elapse between the offense and arrest.
The prosecution will often try to prove a violation of 23152(b) by showing that the test result(s) after arrest were .08 or higher and that at the time of driving, the person was actually higher in blood level alcohol than at the time of the test(s). The prosecution loves to engage in “retrograde extrapolation”, a fancy, scientific sounding formula that in reality is replete with assumptions that are not scientifically valid. Under the guise of science, the prosecution and their expert will attempt to calculate, by going back in time, what the driver’s blood level alcohol was at the time of driving. The prosecution will use a crude, linear burn off formula of .015%/hour to claim that if a person was .11 at the time of the test after arrest, and if the test occurred one hour after driving, the driver was actually .11 + .015 = over .12% at the time of driving.
DUI Defense attorneys strive to demonstrate the opposite: that the driver’s blood level alcohol was rising; meaning, that at the time of driving, the driver was under .08% but only rose to .08% or more because of the passage of time and the continued absorption of alcohol into the driver’s system after the driver was stopped by police.
To present successfully a rising blood level alcohol DUI defense, a DUI lawyer would obtain information about what alcohol the driver consumed before driving, when the driver consumed the alcohol, how much alcohol the driver consumed and when the driver last consumed alcohol before driving. Food intake can dramatically affect the absorption of alcohol; therefore your DUI defense would include information as to any food and time of meals/snacks.
If the prosecution proves beyond a reasonable doubt that a sample of the driver’s blood/breath was taken within three hours of the alleged driving and that a chemical analysis of the sample showed a blood alcohol level of .08% or more, the jury may conclude that the driver’s blood alcohol level at the time of driving was .08% or more.
The regard or disregard given by the officer to the rules affecting the administration of chemical tests goes to the weight and not the admissibility of the test result. In simple English, this means: if police don’t follow the law has to how to give a blood or breath test, the test results cannot be excluded because of what the police did or did not do, but that the jury can accept or reject or do whatever it wants with the results due to the police failure.
If the evidence shows that the person administering the test or agency maintaining the testing device failed to follow Title 17 regulations (rules governing the administration of tests and maintenance of testing devices), the jury may consider this in evaluating the test results.
Is a driver obliged to perform the so called field sobriety tests? No.
Is a driver obliged to blow into the handheld breath device (commonly referred to a “PAS” device—short for “Preliminary Alcohol Screening device)? No. There are only two exceptions. First, if a the driver is under 21, then the driver is required to perform the PAS test and will suffer a one suspension if the driver refuses to submit to the PAS test. Second, if the driver, regardless if the driver is under 21 or not, is presently on DUI probation, the driver presently on DUI probation must submit to a PAS test. If the driver on DUI probation refuses to take a PAS test, then the DMV will suspend the driver’s license for one year.
Is the driver, who is lawfully arrested for a suspected DUI, required to submit to a chemical test after being lawfully arrested for a DUI? California Vehicle Code Section 23612 says “yes” by creating “implied consent.” The key for your DUI defense is that the arrest must be “lawful.” If police arrest you but lack either a reasonable suspicion to stop/detain you initially and/or do not have probable cause to arrest you, the evidence (breath/blood results) can be suppressed and you win!
After a lawful DUI arrest, the person is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood. A person is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood if arrest for a DUI based on drugs.
Following a DUI arrest, pursuant to Vehicle Code Section 23612(a)(2)(A), the person has the choice of whether the chemical test shall be of his or her blood or breath. The officer shall advise the person of that choice. If the person is either incapable or states that he or she is incapable of completing the chosen test, the person shall submit to the remaining test. If a blood test or breath test is not available, then the person shall submit to the remaining test. VC 23612(d)(2). If both blood and breath are unavailable, the person shall submit to a urine test.
If the person, because of the need for medical treatment, is first transported to a medical facility where it is not feasible to administer a particular test of, or to obtain a particular sample of the person’s blood, breath, or urine, the person only has the choice of those tests that are available at the facility. In that case, the officer shall advise the person of those tests that are available at the medical facility and that the person’s choice is limited to those choices that are available. VC Section 23612(3).
In addition, a person who chooses a breath test shall be advised before or after the test that the breath testing equipment does not retain any sample of the breath and that no breath sample will be available after the test which could be analyzed later by that person or any person. VC Section 23614(a).
The person who chooses a breath test shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that there will be something retained that may be subsequently analyzed for the alcoholic content of the person’s blood. VC Section 23614(b).
The person shall also be advised that the blood or urine sample may be tested by either party in any criminal prosecution. VC Section 23614(c).
A person who is afflicted with hemophilia is exempt from a blood test. A person who is affected with a heart condition and is using an anticoagulant is exempt from the blood test.
The officer is required to forward immediately the blood or urine sample to the appropriate forensic laboratory. The forensic laboratory must forward the results of the chemical tests to the DMV within 15 calendar days of the arrest (VC Section 23162[g][1]).
Police must admonish/warn a person that his or her failure to submit to or complete the required chemical test will result in a suspension of the person’s privilege to drive for one year.
As previously indicated, in a typical DUI case, the complaint has two counts (charges).
The first count (charge) is a violation of California Vehicle Code Section 23152(a).
The second count (charge) is a violation of California Vehicle Code Section 23152(b).
Here are some examples of actual first offense DUI complaints (charges). Please note: the identifying characteristics of the driver have been deleted. Please click on each to read the actual complaint.
First offense DUI with .15% or more BAC