A DUI arrest that was the result of a blood alcohol content (BAC) will generally result in two different charges for the same act: Vehicle Code § 23152(a) and Vehicle Code § 23152(b).  The government codifies each crime in a different statute.  Every crime is comprised of elements.  The prosecution must prove beyond a reasonable doubt every element of the statute that they charge.  Until January 1, 2014, VC § 23152(a) (commonly referred to as the “A” count) set forth the crime of driving under the influence of drugs or alcohol or a combination of drugs and alcohol.  To be convicted of that crime, the prosecutor would have to prove the element that you were under the influence of drugs and/or alcohol, and that you were driving at that time.  Hence, there are two elements to that crime, both of which must be proven beyond a reasonable doubt.

The Current “A” Count

On and after January 1, 2014, if a person is charged with the “A” count, the government is alleging that that person drove under the influence of alcohol only.  The code section specifically reads:  VC § 23152(a) “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.”  The District Attorney must prove that the person was: a) Driving a motor vehicle; and b) Under the influence of an alcoholic beverage.  A person is considered “under the influence if as a result of consuming an alcoholic beverage, his or her mental or physical abilities are so 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.”  CALCRIM No. 2110, Driving Under the Influence.  A person may be charged with this statute regardless of his or her actual BAC.  For example, if a person is particularly sensitive to alcohol (a “lightweight”), that person may be “under the influence” after just a glass of wine or a shot yielding a fairly low BAC of <0.05%.  On the other hand, those who drink heavily and on a regular basis or have bodies that are naturally more resistant to the effects of alcohol may show no symptoms of intoxication even after several glasses of wine.  In the first example, the person may have a fairly low BAC but s/he could be determined to be “under the influence” of alcohol.  In the latter example, the person may have a high BAC, possibly higher than 0.08%, and not be under the technical “influence of alcohol.”

The “B” Count

The second charge a person will likely be facing is the “B” count, or VC § 23152(b).  The “B” count requires the District Attorney to prove that the person was: a) Driving a motor vehicle; and b) His/ her BAC was 0.08% or more at the time of driving.  (See VC § 23152(b))  As you can see, there is no requirement of proof that the person was under the influence of alcohol in the technical sense.  This charge will be triggered if on a preliminary alcohol screening test and/ or a chemical test the numbers come up 0.08% or more.  And in fact, the police often arrest people for allegedly violating this statute even if their preliminary alcohol screening test comes back less than 0.08% because your BAC “could” have been higher (0.08%)when you were driving.  This statute is referred to as the “per se” statute.

If you have been charged with a DUI it is important to speak with a lawyer as soon as possible, even if you don’t think you will hire one.  The Law Offices of Matthew S. Luzaich provides a free consultation to discuss your DUI case.  Check out our DUI webpage to find out more information at http://www.530attorneys.com/dui.


*This article does not constitute legal advice.  The information contained in this article should not be relied upon in any legal action, and any law contained herein applies in California state courts only.  It is not a substitute for legal advice and the accuracy of the information may have changed since its publication.  If you have a pending legal case, you should contact a lawyer to address any questions you may have about your case, the internet is not a substitute for professional service.

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