As a prosecuting attorney for just under six years in Ventura County , I went to trial on many DUI cases, and made filing decisions on literally thousands of them. Now that I represent YOU, I find that many of my clients do not understand the DUI laws. What follows is valuable information for the person who has been drinking, and thinks, "I'm fine to drive." A DUI does not always involve a horrendous accident or a chronic alcoholic. DUI arrests happen to good people with no criminal record who make the wrong decision to drive because they feel "fine".
First, you need to know the law: There are two separate crimes involved in most DUIs. California Vehicle Code section 23152 has two charging sections, (a) and (b). Section 23152(a) makes it illegal to drive "under the influence". The law defines this as a state of being where your ability to drive a motor vehicle is impaired. Section 23152(b) makes it illegal to drive with more than .08% alcohol in your blood. This is pure science, and is determined by measuring your breath or blood. What this means is that if someone is a .06% (under the "legal" limit) but for some reason is severely impaired, they are guilty of a DUI. If someone is a .12% and is "fine to drive", they are also guilty.
Most people know when they are severely impaired, but many people do not feel the affects of alcohol when their level is .08%. I spoke to a woman last week who had two glasses of wine during her evening, and "felt fine". She got in the car and got on the cell phone. She was a little distracted, and so she made a few minor driving errors. The police pulled her over, and even though she was not impaired, when she blew into the machine, it came back .08%. She was arrested and spent the night in jail before she could be bailed out. If this case went to trial, we could certainly argue that she was "fine" to drive. We can argue she was not impaired. The prosecuting attorney would completely agree. She would still be found guilty of 23152(b), because she was over a .08% blood alcohol content even if she was "fine to drive".
What could she have done differently? There are many urban myths out there about how to "beat" a DUI. I've talked to a few clients who have asked me what would have happened had she just not blown in the machine. Well, every one of us with a California Driver's License has agreed that as a condition of our driving privilege, we agree to either blow in the machine (the one back at the police station) or give a blood sample. If we refuse, we lose our license. Period. Even if you are sober. Even if it would have shown a .00%. And refusing doesn't always mean the police won't measure your blood. A few years ago the California Courts held that your blood can be "forcibly" drawn without your consent if the officer has probable cause to believe you are under the influence. It has to be drawn in a "humane" manner using medically safe procedures, but it is admissible in court.
The bottom line is there is no clear way to "beat" a DUI. The best way to beat it is to not be guilty. That is not always easy to determine, however. Being impaired is something you feel, but few of us have breath machines that will test our alcohol level. The DMV suggests waiting one hour after your last drink for every drink you have consumed. Three drinks = three hours after your last drink is gone. However, the only sure way to avoid being arrested for a DUI is to use a designated driver who has had ZERO alcohol. Just being on the road puts you and others at risk. Even the smallest Vehicle Code violation gives them a reason to stop your car, and the faintest smell of alcohol gives them reason to ask you to blow into the machine. If you value your license privileges and your freedom, be careful and don't take chances. And if you get arrested, you need to call us right away so we can discuss your case.