What exactly are the elements of a violation of California Vehicle Code Section 23152?
What does it take to prove you are driving in violation of CVC 23152? First of all, a violation of CVC 23152, or commonly called “drunk driving”, can occur in one of two ways. One can violate CVC 23152(a) by being under the influence of alcohol and/or drugs or by having a blood alcohol level of .08 or more at the time of driving.
To prove that a driver is under the influence of alcohol and/or drugs it must be shown that his or her physical or mental abilities are so impaired that he or she cannot drive with the “caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.” That is the standard. The method of proof can consist of how the driver is actually driving the vehicle, the observations of the officer once the vehicle is stopped, the performance on the “field sobriety tests”, and the breath test in the field. Some or all of these factors may be present in every case. Also, the chemical test that is obtained after the arrest can be used to infer that, if it’s more than a .08, the driver is under the influence.
Proving that a driver’s BA is over a .08 at the time of the driving is accomplished one of two ways. The driver has a choice of either a blood test or a breath test after he is arrested. If the blood alcohol level comes back at a .08 or more at the time of the test and the test is conducted within 3 hours of the driving then the driver is presumed to have had a blood alcohol level of .08 or more at the time of driving. It’s not a foregone conclusion that the driver’s BA was at or above the legal limit of .08, it is rebuttable. The prosecutor will try to extrapolate (or estimate backwards) through an expert’s testimony that given the known BA level at the time of the test the BA at the time of the driving was within a range that puts the driver over the legal limit.
If a breath test is chosen it can be first done in the field and often times again at the station. Depending on the department, the test in field can serve as the preliminary test first and then the forensic test (one used in court). The breath testing equipment is designed to show what the blood alcohol content is of the driver’s blood from a sample of the breath. It takes a detailed discussion of the science of this to explain it fully, but the legislature and the courts have decided that for DUI purposes the breath sample, even with its limitations on accuracy, is a legally accepted method of proof of a driver’s level of impairment.
The trial of a driving under the influence case is one of the more complicated trials an attorney can face. The trial will often contain eyewitness testimony from civilians, professional witness testimony from police officers, chain of custody issues with blood specimens, and expert testimony from analysts from the crime lab. An experienced criminal defense attorney can battle the prosecutor to a successful conclusion even under the most difficult circumstances when he has met these challenges before and learned how to conquer them.