By Law Offices | Felicia Yates & Associates
If a person is cited or arrested for a Misdemeanor DUI, they will typically face one OR both of the following charges: A violation of California Vehicle Code (CVC) section 23152(a), and CVC section 23152(b). They are both considered DUI violations, but they require different approaches in the way they are defended against by your attorney. By the way, CVC section 23152(a) considers being under the influence of any drug (whether or not it is a prescription) as a violation of that code section.
Simply put, CVC section 23152(a) is the crime of being under the influence of any measurable amount of blood alcohol concentration (BAC), or any drug. In contrast, CVC section 23152(b) is the crime of having a BAC of .08% or higher while operating a motor vehicle. Both vehicle code sections require that the District Attorney (DA) prove you were operating a motor vehicle at the time you were suspected of being under the influence of alcohol.
Under CVC section 23152(a), the DA has to prove that your mental or physical abilities were impaired to the point that you were no longer able to drive a vehicle under similar circumstances, with the same caution as a sober individual who exercises reasonable and ordinary care.
Under CVC section 23152(b), the DA has to show beyond a reasonable doubt, that at the time you were driving, your BAC level was .08% or higher. In contrast to CVC section 23152(a), under CVC section 23152(b), the DA isn't concerned at all with whether or not you were impaired (some people have a much higher alcohol tolerance level than others). The DA is only concerned with whether or not you were operating a motor vehicle while your BAC was .08% or higher. If the chemical test results can be proven to establish this fact, then you are deemed to have been "per se" guilty of the crime of a DUI in violation of CVC 23152(b) - regardless of whether you were actually impaired or intoxicated!
Each code section requires a unique type of criminal defense strategy. There are multiple ways to attack each charge. For example, under CVC section 23152(b), just because the test results reflect a BAC of .08% or higher, some of your defenses may include the following:
1) If your test was conducted an hour or two hours after you were initially stopped, you may benefit from the defense of a "rising blood alcohol level";
2) The chemical testing device itself may not have been properly functioning;
3) The testing device operator may not have been adequately trained, and may have made errors in the way they administered the test; and
4) A forensic chemist can analyze a blood or breath sample provided to your defense attorney to determine if your BAC measurements were correctly calculated or converted by the laboratory who analyzed the results.
Since everyone's case is unique to that individual and the specific circumstances, you should consult with a competent DUI attorney to determine your best course of action. Our office has expertise in this area of the law, and we encourage you to reach out for a free consultation. Attorney Felicia Yates has been practicing law for over 35 years in California and may be contacted at (702) 817-4661, via e-mail at attorneyfeliciayates@gmail.com, or via website at https://www.attyfeliciayates.com.
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