In California, as in every state, there are actually two separate drunk driving offenses. The first simply makes it illegal to drive “under the influence.” The second specifically makes it illegal to drive with a blood alcohol level above the legal limit of 0.08%.
Here’s the text of the California Vehicle Code, which lays out these two separate offenses.
Section 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. (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.
What’s more, if you’re arrested for DUI, you’ll most likely be charged with both crimes.
You’re probably thinking to yourself, “Hold on. I thought driving with 0.08% BAC was driving under the influence. Why am I being charged for the same thing twice?”
If you’re confused, you’re not alone. In fact, a client of mine who was recently arrested for DUI in San Francisco asked me this very question. I represent people from around the Bay area—San Francisco, Daly City, Oakland, San Jose—and this is just one of those confusing aspects of DUI law that I try to help all of my clients understand.
So, what is difference between the two offenses?
Well, for simplicity’s sake, think about it this way: The second offenses—the so-called “per se” offense—is based on blood alcohol (BAC). The first offense, on the other hand, is based on impairment: the degree to which alcohol has diminished your coordination and cognition, that is, your ability to drive safely. Field sobriety tests, for example, are meant to be test of impairment.
One could argue that there should be two different laws because BAC and impairment are two different things. Two people with the same blood alcohol content may not be impaired to the same degree. We all know that some people’s tolerance to alcohol is far greater than other’s.
Here’s where, I’m sorry to say, things get even more confusing.
Even though BAC and impairment are, in principle, two different things that require two different kinds of proof, the results of a chemical test at the police station are potentially enough to convict you of both crimes. Even though the first offense is based on impairment, the state doesn’t need any evidence of actual impairment—such as slurred speech, the results of a field sobriety test, etc.—to convict you of driving “under the influence.”
However, the good news is that, if you’re convicted of both offenses, you will still only be sentenced for one.
For an extended discussion of the two drunk driving offenses in every state, read the article “Why You’re Being Charged With Two Offenses.”
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