DUIs: The (a) and (b) Counts

It's common for prosecutors in California to charge both Vehicle Code sections 23152(a) and 23152(b) after a single DUI arrest. Charging both allows the prosecution to pursue two legal theories when proving the case: one of these theories is based on “impairment” while the other is based on a presumption that a person was legally impaired due to a chemical test yielding a result of .08% or greater blood alcohol content (BAC) near the time of driving. This means that if one charge is weakened by a lack of evidence (e.g., low BAC or no chemical test), the other charge may still result in a conviction based on impairment. However, even if convicted under both sections, the defendant is typically punished as if convicted of a single DUI offense. Sections 23152(a) and 23152(b) differ in their focus and the evidence required for a prosecution. Below is some general information about how these prosecutions work.

California Vehicle Code section 23152(a) makes it unlawful to drive a vehicle while under the influence of any alcoholic beverage or drug, or a combination thereof. Unlike 23152(b), this law, or count, does not require a particular BAC. Instead, it focuses on whether a driver's physical or mental abilities are impaired to the extent that they can no longer operate a motor vehicle with the same care and caution as a reasonable prudent sober person. This law can be described as impairment-based. That is, the prosecution must demonstrate that the driver was impaired, regardless of BAC. Evidence in a 23152(a) prosecution may include poor field sobriety test performance, officer observations (e.g., erratic driving, slurred speech), and, though not required, chemical test results. This means that in California, even without a BAC of .08% or greater, a person can still be charged with and convicted of driving under the influence.

California Vehicle Code section 23152(b) establishes a "per se" DUI offense, making it unlawful to drive with a BAC of 0.08% or greater. In these cases, the law presumes impairment based solely on the BAC level, regardless of other evidence of impairment. Of course, this per se impairment presumption is one that is rebuttable, i.e., it can be disproven by other evidence.

I’ve represented thousands of clients accused of driving under the influence throughout my career and the only single count 23152(a) case that I can remember was a jury trial in a few years ago that ended in client’s acquittal. Very challenging cases to prove as a prosecutor. As always, if you have been arrested or charged with driving under the influence in the North State and you have questions about the charge or process, please contact Davis to schedule a free 30-minute consultation at my office in Chico. Be safe out there!