Why does my California DUI citation say that I have been charged with Vehicle Code 23152(a) and Vehicle Code 23152(b)?
In California a DUI encompasses two misdemeanor crimes. If your BAC (Blood Alcohol Content) is 0.08 or higher, you will be charged with Vehicle Code 23152(a) - driving under the influence of an alcoholic beverage and Vehicle Code 23152(b) - driving with a blood alcohol content of 0.08 or higher.
What this means is that under 23152(a) the prosecution can lawfully charge you with a DUI, even if your BAC is below a 0.08 so long as they can prove that you were (1) driving (2) while “under the influence” of an alcoholic beverage.
But, what does it mean to be “under the influence”? Pursuant to the California Jury Instructions (CALJIC 16.831), “a person is under the influence … when as a result of drinking such alcoholic beverage … her physical or mental abilities are impaired to such a degree that she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances”.
The determination of being "under the influence" is ultimately a subjective one that the prosecution will have to prove, beyond a reasonable doubt, at trial. Thus, if your BAC is below a 0.08 the prosecution will have to rely solely on this subjective determination to find you guilty of Vehicle Code 23152(a). The prosecution's main witness will be the arresting officer, who will testify to your driving pattern, physical demeanor, and performance on the (FSTs) Field Sobriety Tests.
Typically the arresting officer will testify that your driving pattern was erratic and that you showed "objective signs of intoxication". These include blood-shot, watery eyes, an unsteady gait, emitting an alcoholic odor and slurred speech. Thus, if stopped for a DUI it is generally advisable to refuse the field sobriety tests, and communicate with the police as little as possible. It is important to note however, that under California's "implied consent" law, once you are arrested for a DUI, if you refuse to take a blood or a breath test to determine your BAC, you will be subject to an automatic one year license suspension, and face harsher criminal penalties.
Because proving Vehicle Code 23152(a) involves such a subjective determination, if your BAC is below a 0.08, or even slightly above a 0.08, a good criminal defense attorney should be able to get your charge reduced from Vehicle Code 23152(a) to a wet reckless under Vehicle Code 23103.5, or an exhibition of speed under Vehicle Code 23109(c).
Additionally, sometimes the police arrive on scene after an accident, or approach you and question you while you are simply sitting in you car. Because the prosecution must prove that you were driving, in addition to being "under the influence", for you to be found guilty of Vehicle Code 23152(a), it is best to communicate as little as possible to the police about the circumstances surrounding your situation if you believe that you are being investigated for DUI.
If you are facing DUI charges in Los Angeles, San Diego or Orange County contact a skilled California criminal defense attorney immediately.