California has two basic drunk driving laws, found in Vehicle Code section 23152, sections (a) and (b):
• 23152(a) It is a misdemeanor to drive under the influence of alcohol and/or drugs.
• 23152(b) It is a misdemeanor to drive with .08% or more of alcohol in your blood.
Note: In most cases, both the 23152(a) and (b) offenses will be charged. Even though there is only one act, the law says that a defendant charged with drinking and driving can be convicted of BOTH offenses -- but can only be punished for one (the punishments are identical). Vehicle Code section 23153 sets forth the "felony DUI" provisions where an injury results from the drunk driving, while Penal Code sections 191.5 and 192 describe the crime of "vehicular manslaughter" where there is a death.
Procedurally, you should be aware of certain legal rights you have -- rights which are commonly ignored by the police:
• There must be legally sufficient facts to constitute "probable cause" to stop, detain and arrest you.
• You should be advised that submission to field sobriety testing and portable field breath testing is not required by law.
• Once arrested, you must be advised of your constitutional rights -- the "Miranda" warning -- before any further questioning takes place.
• You must be given a choice of breath or blood testing; if you refuse, you must be advised of the legal consequences (the "implied consent" advisement).
• If a breath test is administered at the police station, since the breath sample is not saved, you must be given a chance to obtain a blood sample for later independent testing by your defense attorney.
To have any questions answered contact our office at (916) 447-7842
Information from CA DUI Legal Guide