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Vehicle Code 23152(a) – Driving Under The Influence Of Alcohol/Drugs

VEHICLE CODE 23152 (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.

This statute contains several elements of the offense that the prosecution must show, each of which must be proven beyond a reasonable doubt. Let's look at the elements in depth.

(1) “Under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug.”

  1. Under the Influence Defined – “ A person is under the influence if 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; People v. Schoonover (1970) 5 Cal.App.3d 101, 105-107; People v. Enriquez (1996) 42 Cal.App.4th 661, 665-666
  2. Alcoholic Beverage Defined:  “ An alcoholic beverage is a liquid or solid material intended to be consumed that contains ethanol. Ethanol is also known ethyl alcohol, drinking alcohol, or alcohol.” CALCRIM No. 2110
    1. i. Also See Vehicle Code 109 – ““Alcoholic beverage” includes any liquid or solid material intended to be ingested by a person which contains ethanol, also known as ethyl alcohol, drinking alcohol, or alcohol, including, but not limited to, alcoholic beverages as defined in Section 23004 of the Business and Professions Code, intoxicating liquor, malt beverage, beer, wine, spirits, liqueur, whiskey, rum, vodka, cordials, gin, and brandy, and any mixture containing one or more alcoholic beverages. Alcoholic beverage includes a mixture of one or more alcoholic beverages whether found or ingested separately or as a mixture.”
    2. ii. Interesting note that in the definition of alcoholic beverage provided by the California Criminal jury Instructions, it notes the beverage was intended to be consumed.  This would seem to lead to the conclusion that involuntary intoxication is a valid defense.
  3. Drug Defined: “A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinary cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.” CALCRIM No. 2110; Vehicle Code 312.
    1. i. Extremely broad language used to define a drug.

(2) “To drive a vehicle”:

  1. Definition of driving:  “Volitional Movement of a vehicle.”Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768
    1. i. The movement may be slight. Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1029
    2. ii.The driving may be established through circumstantial evidence. People v. Wilson (1985) 176 Cal.App.3d Supp. 1,9
    3. iii. There is a common misconception that if the keys are in the ignition that is all it takes. The vehicle must have actually moved, not matter how slight the movement may be.
  2. Definition of a Vehicle: The definition is found in Vehicle Code 670:
    1. i. A “vehicle” is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.
    2. ii. Generally speaking, a vehicle requires a motor and can be used on a highway.

(3) Vehicle Code 23152(a) allows for prosecution of Driving Under the Influence in multiple situations

  1. i. Where the Blood Alcohol Level was below 0.08%
    1. Generally, where there is no evidence of drug use, and the BAC is below a 0.08%, there has to be other evidence of impairment, such as:
      1. Poor driving
      2. The Officer or Witness  observations:
        1. i. Red, watery eyes
        2. ii. Odor of alcoholic beverage coming from the vehicle/person.
        3. iii. Slurred speech
        4. iv. Stumbling
        5. Poor performance on the field sobriety tests.
        6. All of the circumstantial evidence used above have completely legal justifications depending on the facts of the case.  If the District Attorney is at the point where they are trying to prove a DUI with no drug use, a BAC of 0.08%, and the evidence described above, they normally have an extremely weak case.
    2. ii. Where the Blood Alcohol Level was below a 0.08% and there is evidence of drug use, through a blood/urine test.
    3. iii. Where there is no evidence of alcohol use, only drug use.

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