The Principal DUI Statute

In California, driving under the influence (DUI) is usually charged as a criminal misdemeanor.  The statute under which most DUI suspects are charged is Vehicle Code § 23152, which  reads as follows: 

(A)   It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. 

 

 (B)   It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.   

(A) “Under the Influence” 

To be “under the influence,” it’s not enough to show that the accused had a few drinks in his or her system at the time of driving.  Instead, the prosecution must show that the driver’s physical or mental abilities were impaired to such a degree that he or she no longer had the ability to drive a vehicle with the caution and skill characteristic of a sober person of ordinary prudence, under the same or similar circumstances.   

(B) .08% BAC  

Even if the driver was driving properly and without observable impairment, he will still be found guilty of DUI if the prosecutor can produce evidence showing a blood alcohol content (BAC) of .08% or higher.  This is sometimes called the Per Se Rule, because all that is required for conviction is that the driver had a BAC of .08% or higher while driving.  (Note: under another provision of the Vehicle Code only .05% BAC is required for a DUI conviction if the driver is under 21.)

Both subparts of § 23152 require that the accused drove a vehicle.  One cannot be guilty of DUI if one did not “drive.”

“Driving”

To “drive” a vehicle, the traditional rule is that the prosecutor must show the accused was in actual physical control of a vehicle, and that the vehicle was in motion.  That is to say, the driver must have been at the steering wheel and the vehicle must have moved at least a few inches.   Historically, that meant that the arresting officer had to observe the car's movement.  However, the rule has been weakened in a series of cases to the point that, even if the police did not observe the car move, almost any  evidence showing that the accused was the driver may be admissible.  In the recent case of People v Martinez, 2007 DJ DAR 16612 , where the vehicle was parked at the time it was observed by the police, the court found that the suspect's admission to the arresting officer that he had driven the car was admissible and sufficient to establish "driving."  Again, the moral is, don't confess to anything!

Attempted DUI

Vehicular movement is NOT required to be convicted of attempted DUI under Penal Code §§ 664 and §23152(a). .  For attempted DUI, it is enough to show that the suspect intended to drive and took a substantial step toward moving the vehicle.  Therefore, if an intoxicated person says, “I’m going home now,” but cannot start his car, that person may still be convicted of an attempt to drive under the influence.  People v Garcia (1989) 214 CA3d Supp 1, 4–5, 262 CR 915 (defendant was sole occupant of vehicle parked in the fast lane with flashers on and had blood-alcohol level of 0.13%).

In Northern California, attempted DUI is rarely charged.