Section 23152 of the California Vehicle Code
Section 23152 states the elements of driving under the influence which are: it is unlawful to drive a motor while under the influence of an alcoholic beverage, drug, or a combination of alcohol and a drug;1 or to drive with a blood alcohol level of.08% or more;2 or to drive while addicted to any drug.3 Each of these offenses, under most circumstances, is a misdemeanor.
The term under the influence means that a person’s, “physical or mental abilities are impaired to such a degree that he no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.” Merely poor driving couple with the consumption of alcohol, drugs or both is insufficient to meet this standard. However, it is a factor to consider, along with all the other surrounding circumstances when determining whether a person’s driving ability is impaired. Circumstantial evidence is sufficient to establish impairment and can include a variety of factors including a person’s demeanor; the existence of bloodshot watery eyes; police administered test results, or the so called field sobriety tests used to judge balance and coordination; slurred or unusual speech; difficulty in responding to questions asked during the course of an investigation by law enforcement; and any other circumstance consistent with impairment. Proof of actual intoxication is unnecessary. In a prosecution for driving under the influence of drugs, or the combined influence of alcohol and drugs, it is not a defense that the drugs are prescribed lawfully by a physician.
Under section (b) of 23152 it is also a violation of law to drive with a blood alcohol level of .08% or greater. This is a separate offense from section (a), driving under the influence, and a person can be convicted of each, although not punished for both. If a person is under 21, then the level at or over which they cannot lawfully drive is .05% blood alcohol.4 A person under 21 can also be convicted of an offense even if no alcohol test results exists if a jury decides they were under the influence and had the requisite blood alcohol level where evident based on the circumstantial evidence, and signs of impairment.5
It is also unlawful for a person under 21 to drive with a .01% or more blood alcohol level as measured by a PAS device test (preliminary alcohol screen) or other chemical test.6
Driving a commercial vehicle with a blood alcohol level of .04% or greater is a violation of law.7
Who is considered an addict for purposes of section 23152(c)? Addiction has been defined to mean that a person is so dependent on a particular drug that his or her body undergoes, “abstinence syndrome” or “withdrawal illness” when force to suddenly stop consuming the drug to which they are addicted.
1 Section 23152(a) of the California Vehicle Code
2 Section 23152(b) of the California Vehicle Code
3 Section 23152(c) of the California Vehicle Code
4 Section 23140(a) of the California Vehicle Code
5 Section 23140(b) of the California Vehicle Code
6 Section 23136(a) of the California Vehicle Code
7 Section 23152(d) of the California Vehicle Code