By David Ruyle | San Diego DUI Attorney
Not a month goes by that I will be in a conversation with someone about the effects a Driving Under The Influence (DUI) when they ask me if I also do criminal defense. A DUI is a criminal offense. DUI is considered a crime and you can go to jail.
The three most common California Code violations fall under the Penal Code, the Health and Safety Code and finally the Vehicle Code. Surprisingly the Vehicle Code is more extensive than the Penal Code. Although the police have the authority to enforce each section, it is impossible for an officer to be out on patrol, witness the traffic moving around him or her, and recall one of thousands of violations within seconds. An officer relies on his or her training which is limited to only a handful of violations.
With little surprise, DUIs are regulated by the California Vehicle Code. Sections 23152 and 23153 state that you cannot drive while under the influence, this includes alcohol, marijuana, illegal narcotics and prescription medication. You can be charged with a misdemeanor under VC 23152 or a felony under VC 23153. A case is charged as a felony when another person incurs bodily injury. The extent of a victim’s “bodily injury” is one issue that is routinely debated between attorneys.
Before I mention how alcohol or drugs can get you into trouble while driving, I want to make you aware that there are other elements of the crime.
A DUI Requires Driving
The most often overlooked element of a DUI is the element of driving. In Mercer vs. California Department of Motor Vehicles, the court required that there must be “volitional movement”. You would think that that the word “drive,” is fairly self-explanatory, but you put it in the hands of an attorney and he or she is going to run with it for further interpretation.
If you are just found sitting behind the wheel, that is not driving a vehicle. Case law requires “volitional movement” of your vehicle. That means you willingly and knowingly moved that car. Starting that car and found with the engine running is not direct proof of volitional movement. This doesn’t mean the officer won’t arrest and charge you with DUI because he or she will only listen to so much of your story.
To put this proof of volitional movement into perspective, below are examples of two cases. If you were found parked on the side of the 5 freeway at 3 a.m., with no alcohol in your car and intoxicated when an officer contacts you, ask yourself, “How did you get there sober in the first place?” It is not like you decided to park on the freeway because downtown parking cost too much on a Saturday night, walked to your favorite micro-brewery, throw down several pints, then walked back to your car to sleep it off behind the wheel. This scenario is a lot different if you were parked outside your home or a bar you just left. It is easy to cast doubt with a jury that you simply walked over to your vehicle and went to sleep listening to the radio with the engine running to keep you warm. You may be in violation of other offenses such as drunk in public but not DUI.
If you are not able to get a sober driver to take you home, sleeping in your car is a far better option than driving. You would much rather hire an attorney to justify your nap and lack of volitional movement than hurting yourself or someone. Even though the law is on your side, anytime you are behind the wheel of your car with signs of impairment, with the engine running or not, you are likely going to get arrested. You must remember that the burden of proof needed to arrest you is only probable cause. Poor motor skills, mental impairment and odor of alcohol is enough for an arrest but might not be enough for a conviction.
I recently got into a professional discussion with a seasoned local law enforcement officer about this topic and she felt adamant that it was enough for a DUI conviction. I don’t fault any officer with being ignorant or misinformed since the focus of their job is narrowly scope and training is limited. Their scope is to enforce laws, arrest people with probable cause for crimes that have occurred, all with the interest to keep the public safe. It is traditionally a lawyer’s role to provide further interpretation.
How much alcohol is too much?
Each of the two Vehicle Code sections have a plethora of subsections that define with specificity the elements of what it means to be guilty of under the influence. When a client is arrested for a DUI with alcohol, they will be cited for violating at least two of the subsections, (a) and (b). The “(a)” count as we say requires that a driver be under the influence of alcohol. The key word is “influence.” Depending on your body type, diet and history of alcohol consumption you will be affected differently than others. In order to determine if you under the influence, an officer may conduct field sobriety tests. You are not required to do the field sobriety tests unless, including but not limited to being under the age of 21 and on probation. The tests not only evaluate your ability to perform physical tasks but also your ability to follow instructions (mental perception). So following instructions is just as important as doing your ABC’s correctly or not stepping off an imaginary straight line. If an officer asks you to walk 9 steps heal to toe, he or she is looking for not 8, not 10 but 9 steps.
For those of you who have spent years building a tolerance for alcohol that allow you to perform all field sobriety tests with the equivalence of an Olympic athlete after consuming a copious amount of alcohol, you still are in violation of the Vehicle Code. The “(b)” count, states that you cannot have an blood alcohol content greater than .08 percent if you are over the age of 21 and not driving a commercial vehicle.
There are different rules for operating a commercial vehicle such as large tractor trailer and those that drive with passengers for hire. So if you drive for Lyft or Uber, they may have a no alcohol tolerance policy but sub-sections (c) and (d) of the code specify that the BAC cannot be greater than a .04. I have seen clients charged with these subsections when they have a commercial license and not driving a commercial vehicle at the time.
Drugs and Driving
You can also be in violation of the vehicle code section VC 23151(e). It is unlawful to drive a motor vehicle while under the influence of any drug. The key word is “any”. Many of us recognize that alcohol is a drug, but our esteemed legislators sought to provide further clarification. A drug driving charge can result from someone who choose to smoke some crystal meth and go on a 72 hour road trip, a disabled person who is taking prescribed pain medication going to the pharmacy or a hit from vape pen filled with THC. Not being a physician and trying to break it down in simpleton terms, you must remember that the purpose of a drug is to alter some part of your body. Some drugs cure diseases and simply make you irritable, whereas other are used for pain management that cause drowsiness. Anything that can alter your state of mind and physical motor skills is enough.
Will I Go To Jail For DUI?
There are two periods when a person can be taken into custody, at the initial arrest and at a sentencing before a judge. An officer can choose to cite and release you on your own recognizance, which means you were arrested but not taken into overnight custody. Depending on the circumstances of your arrest and the policies of the arresting agency you may or may not go to jail that day. Some of the circumstance surrounding an arrest that have an effect are as follows: Your attitude. You can politely invoke your right to remain silent but don’t be a jerk about it. Availability of a sober driver. An officer is more likely to release you to someone that is willing to see you get home safely. If you are a danger to yourself due to the level of impairment alone or not, an officer has the discretion and duty to make sure you remain no danger to yourself as well.
If you are charged and plead guilty or convicted of DUI you can go to jail. To many people one weekend in jail feels like 6 months. The range for actual jail time ranges from a few days to several months for a first-time misdemeanor DUI. What determines the length of custody depends on additional allegations surrounding the DUI arrest, your criminal record and what type of contributing citizen you have been to your community.
Will I lose my license?
There are two forces put into motion when you are arrested for DUI. They are the investigation and prosecution for a violation under California Vehicle Code and an Administrative Per Se review through the California Department of Motor Vehicles. They act separately from each other. The conclusion such as a suspension of your driver’s license by the DMV or a conviction in a court of law does not necessarily mean they are synonymous or absolutely effect the other.
The courts in Southern California generally differ the suspension of driving privileges to the DMV. If you are arrested, the officer will likely keep your driver license and give you what we call the “Pink Sheet” or a DS 367. You have 10 days to schedule a hearing from the arrest date. The hearing will be before a DMV administrative officer, typically at least a month or two from when you request the hearing. That person will determine if you should have your license suspended based one or more of 6 criteria. The most common reason for suspension is having a BAC above a .08 while driving. The DMV applies a more objective test than the courts, which is using your BAC level of .08. You could be arrested and charged with a DUI because you are impaired but not face a hearing before the DMV for the suspension of your license. As a caveat, be sure to always have the most current mailing address on file with the DMV. If you don’t have a license, get an ID car from them. It is your obligation to keep a current address on file and if they mail something to an old address, it is not an excuse for not being informed.
If the idea of hurting someone doesn’t scare you enough to not drink and drive, let me present a very likely scenario that might change your mind. If you decide to drive after a late night of drinking to get home, just remember those tall IPAs have to go somewhere. I am not talking about the alcohol or calories in them, I am talking about how full your bladder is going to get. An officer is not likely to grant you the opportunity to use a restroom upon your request. You will likely have to wait it out and something must give. The back seats in the patrol cars are made of plastic for a reason, and if you are transported to jail with other people, do you trust their bladder. I should hope not. So please, if you have to consume anything, it is much safer to figure another way home. An extra several minutes walking or a taxi home is far cheaper than getting arrested. Nobody is perfect and we all make mistakes. If you do make that mistake, I am here to help.