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First Offense

First Offense

The Law

In California, a prosecutor can charge an individual for being under the influence of alcohol and/or drugs. California Vehicle Code section 23152 (a) & (b) are misdemeanors and define the alcohol related DUI offenses as:

  1. It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.

  2. It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

What does this actually mean?

Many individuals believe a DUI is just one crime. But, in San Diego, an individual arrested for DUI will typically face two DUI charges. An individual will often hear these charges referred to as the (a) count and the (b) count.

23152(a)

A common misconception is that you cannot be charged with a DUI if your BAC is below .08%. In California, you can be charged with a DUI even if your BAC is below .08%. In order to convict you of this offense, the prosecutor must prove two facts:

  1. You drove a motor vehicle, and

  2. You were under the influence of alcohol at the time you drove.

Drive

The prosecutor must prove that you actually drove your vehicle. But, what does it mean to drive in California? The courts have defined driving as the vehicle moving, no matter how slight the movement.

Typically an officer will observe the vehicle moving, which will satisfy this element. But, courts also permit prosecutors to use circumstantial evidence to prove driving. Circumstantial evidence of driving includes facts that indicate you were driving, such as the engine is on, seated in driver seat, keys in the ignition, head lights illuminated, etc.

Under the influence

California courts have held that you are under the influence if your physical and mental abilities are impaired to such a degree that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances. In other words, the prosecutor will use any fact showing you were driving poorly, such as swerving, speeding, an accident, etc.

23152(b)

California Vehicle Code section 23152(b) is commonly referred to as the per se count because the law deems you to be impaired if you have a BAC of .08 or higher. In order to conviction you of the per se count, a prosecutor must prove:

  1. You drove a motor vehicle, and

  2. Your BAC was .08 percent or higher at the time of driving.

Drive

The prosecutor must prove that you actually drove your vehicle. But, what does it mean to drive in California? The courts have defined driving as the vehicle moving, no matter how slight the movement.

Typically an officer will observe the vehicle moving, which will satisfy this element. But, courts also permit prosecutors to use circumstantial evidence to prove driving. Circumstantial evidence of driving includes facts that indicate you were driving, such as the engine is on, seated in driver seat, keys in the ignition, head lights illuminated, etc.

.08 or Higher at the Time of Driving

Vehicle Code section 23152(b) is a Per Se offense because the law presumes an individual is under the influence if their BAC was .08% or higher at the time of driving. A prosecutor will use a breath or blood test in order to prove your BAC was .08% or higher. The prosecutor must prove that your BAC was .08 or higher at the time of driving.

Most BAC tests occur thirty minutes or more after you were stopped, so how does the prosecutor prove what your BAC was at the time of driving? The law presumes you had the same BAC at the time of driving if the breath or blood test was completed within three hours of driving. But, the prosecutor must prove what your BAC was at the time of driving if the test was completed over three hours after the time of driving.

Penalties

Most first offense DUIs are prosecuted as a misdemeanor offense. The typical penalties for a first offense DUI in San Diego include:

  1. Up to one year in county jail;

  2. Informal probation for three to five years;

  3. Fines and assessments of $1600-$2300;

  4. A 3 to 9 month DUI Program;

  5. A 6 month to one year license suspension;

  6. Installation of an Ignition Interlock Device for up to three years; and

  7. Insurance repercussions.

The court may also require additional penalties if there are any aggravating factors, such as an accident, high blood alcohol level, high speed, child in the vehicle, among others. For a discussion on the aggravating factors, see the DUI enhancements section.

First Offense

The Law

In California, a prosecutor can charge an individual for being under the influence of alcohol and/or drugs. California Vehicle Code section 23152 (a) & (b) are misdemeanors and define the alcohol related DUI offenses as:

  1. It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.

  2. It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

What does this actually mean?

Many individuals believe a DUI is just one crime. But, in San Diego, an individual arrested for DUI will typically face two DUI charges. An individual will often hear these charges referred to as the (a) count and the (b) count.

23152(a)

A common misconception is that you cannot be charged with a DUI if your BAC is below .08%. In California, you can be charged with a DUI even if your BAC is below .08%. In order to convict you of this offense, the prosecutor must prove two facts:

  1. You drove a motor vehicle, and

  2. You were under the influence of alcohol at the time you drove.

Drive

The prosecutor must prove that you actually drove your vehicle. But, what does it mean to drive in California? The courts have defined driving as the vehicle moving, no matter how slight the movement.

Typically an officer will observe the vehicle moving, which will satisfy this element. But, courts also permit prosecutors to use circumstantial evidence to prove driving. Circumstantial evidence of driving includes facts that indicate you were driving, such as the engine is on, seated in driver seat, keys in the ignition, head lights illuminated, etc.

Under the influence

California courts have held that you are under the influence if your physical and mental abilities are impaired to such a degree that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances. In other words, the prosecutor will use any fact showing you were driving poorly, such as swerving, speeding, an accident, etc.

23152(b)

California Vehicle Code section 23152(b) is commonly referred to as the per se count because the law deems you to be impaired if you have a BAC of .08 or higher. In order to conviction you of the per se count, a prosecutor must prove:

  1. You drove a motor vehicle, and

  2. Your BAC was .08 percent or higher at the time of driving.

Drive

The prosecutor must prove that you actually drove your vehicle. But, what does it mean to drive in California? The courts have defined driving as the vehicle moving, no matter how slight the movement.

Typically an officer will observe the vehicle moving, which will satisfy this element. But, courts also permit prosecutors to use circumstantial evidence to prove driving. Circumstantial evidence of driving includes facts that indicate you were driving, such as the engine is on, seated in driver seat, keys in the ignition, head lights illuminated, etc.

.08 or Higher at the Time of Driving

Vehicle Code section 23152(b) is a Per Se offense because the law presumes an individual is under the influence if their BAC was .08% or higher at the time of driving. A prosecutor will use a breath or blood test in order to prove your BAC was .08% or higher. The prosecutor must prove that your BAC was .08 or higher at the time of driving.

Most BAC tests occur thirty minutes or more after you were stopped, so how does the prosecutor prove what your BAC was at the time of driving? The law presumes you had the same BAC at the time of driving if the breath or blood test was completed within three hours of driving. But, the prosecutor must prove what your BAC was at the time of driving if the test was completed over three hours after the time of driving.

Penalties

Most first offense DUIs are prosecuted as a misdemeanor offense. The typical penalties for a first offense DUI in San Diego include:

  1. Up to one year in county jail;

  2. Informal probation for three to five years;

  3. Fines and assessments of $1600-$2300;

  4. A 3 to 9 month DUI Program;

  5. A 6 month to one year license suspension;

  6. Installation of an Ignition Interlock Device for up to three years; and

  7. Insurance repercussions.

The court may also require additional penalties if there are any aggravating factors, such as an accident, high blood alcohol level, high speed, child in the vehicle, among others. For a discussion on the aggravating factors, see the DUI enhancements section.