The second way by which a person can be convicted of drunk driving is pursuant to Vehicle Code section 23152 (b). To establish a violation of this law it must be proven that the person had a blood/breath alcohol level of .08% or greater at the time of driving. To determine whether a person was .08% or higher at the time of driving, the focus is on your test results, how close they were taken to the time of driving, when you finished drinking, last ate, and other factors that can help determine what your blood alcohol level was at the time of driving.  Even though your test result may have been above the legal limit, this does not necessarily mean that you were above the legal limit at the time of driving which is what the law is concerned with.  Various factors could have caused your blood alcohol level to fluctuate between when you were stopped by the officer and when you were tested.

          The best way to evaluate the merits of a DUI case is to apply the exact legal standard a judge or jury would use if you took your case to trial.  The law does not allow a judge or jury to apply their own definition of what it means to be "under the influence" or above the legal limit.  For purposes of determining whether a person has violated section 23152(a), the law defines “under the influence” as follows:

          "A person is under the influence of an alcoholic beverage or drug when as a result of drinking such alcoholic beverage or using a drug his or her physical or mental abilities are impaired to such a degree that he or she 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."

          In order to prove that a person violated section 23152(b), the following elements must be established beyond a reasonable doubt:

1. A person drove a vehicle; and

2. At the time, the driver had 0.08 percent or more, by weight, of alcohol in his or her blood.

          The DUI laws in California also allow a judge or jury to make two inferences regarding whether a person may have been under the influence or .08% or higher at the time of driving.  If the evidence establishes beyond a reasonable doubt that a person provided a chemical test within three hours of driving that was 0.08 percent or more, the judge or jury may, but is not required to, infer that the person was under the influence of an alcoholic beverage and .08% or more at the time of driving.  Despite these permissible inferences, the defense is allowed to present evidence and argue that even though an accused provided a chemical test within three hours of driving which was a .08% or more, the blood alcohol level at the time of driving was under .08% and thus the accused is not guilty of violating section 23152(b).

          Breath and blood testing instruments are regulated by Title 17 of the California Code of Regulations.  Among other things, these regulations require that breath testing instruments be calibrated, i.e., checked for accuracy every ten days, that two breath test readings be obtained within .02% of each other, that the person be under continuous observation for fifteen minutes prior to the breath test, etc.  Occasionally, these regulations are not followed.  The law provides that the failure to follow these regulations may be considered in determining the accuracy of the test results.  In order to determine whether these regulations were complied with in your case, discovery beyond the basic police reports would have to be obtained.

          For the laws and procedures applicable to DMV hearings and license suspensions, please click on the "DMV & Suspension Info" box on the left of this page.


 

For information on Los Angeles County DUI Defense click here: www.CaliforniaDUI.info.

For Ventura DUI arrest information click here:                        www.venturadui.com and duiarrestinfo.com