Driving under the influence

Driving under the influence or DUI also known as a deuce.

Elements

Driving

"[S]ection 23152 requires proof of volitional movement of a vehicle." (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 769.) In Mercer, the Supreme Court compared California's DUI statute to other jurisdictions. California criminalizes "driving" as opposed to "operating". A person asleep and slumped over the driving wheel of an operable vehicle with the engine running is "operating," but not "driving" a car.

Steering the car while someone else works the gas and brakes is driving. (In re Queen T. (1993) 14 Cal.App.4th 1143.)

Partition ratio

"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." (Veh. Code, § 23152, subd. (b).)

People v. Bransford (1994) 8 Cal.4th 885

People v. Ireland (1995) 33 Cal.App.4th 680

Highway

"The provisions of this chapter apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise." (Veh. Code, § 23100.)

"Elsewhere throughout the State" means private property counts for DUI. (People v. Malvitz (1992) 11 Cal.App.4th Supp. 9.)

But can only be DUI on a horse on a highway, because a horse is not a vehicle when not on a highway.

Vehicle

Off-road vehicle counts under Vehicle Code section 500.

Impairment to an appreciable degree

Veh. Code, § 312

People v. Enriquez (1996) 42 Cal.App.4th 661

People v. Benner (2010) 185 Cal.App.4th 791

People v. Torres (2009) 173 Cal.App.4th 977.

Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599

People v. Jimenez (2015) 242 Cal.App.4th 1337

People v. Gallardo (1994) 22 Cal.App.4th 489

People v. Anderson (1994) 26 Cal.App.4th 1241

Drugs

Delta-9 THC is the active ingredient of marijuana. Delta-9 Carboxy THC is the inactive metabolite of marijuana. 11-Hydroxy THC is the active metabolite of marijuana.

Enhancements

VC23153

VC23153 requires a supporting offense. VC23152 cannot be the supporting offense. (People v. Thurston (1963) 212 Cal.App.2d 713.) Reckless driving can be a supporting offense, but it must be more than a traffic infraction and not simply DUI.

VC10851 and VC20001 are not supporting offenses. (People v. Captello (1990) 220 Cal.App.3d 211.)

Failing to use a seat belt under VC27315 is a supporting offense. (People v. Weems (1997) 54 Cal.App.4th 854.)

Injury

People v. Dakin (1988) 200 Cal.App.3d 10216

People v. Lares (1968) 261 Cal.App.2d 657

In re F.H. (2011) 192 Cal.App.4th 1465

Vehicular Manslaughter

PC191.5(a) with gross negligence. 4-6-10 state prison straight felony.

PC191.5(b) without gross negligence. 16-2-4 state prison wobbler.

PC192(c)

Multiple convictions for same offense

PC654 applies. (People v. Duarte (1984) 161 Cal.App.3d 438.)

One punishment for multiple victims but only one driving. (Wilkoff v. Superior Court (1985) 38 Cal.3d 345; People v. McFarland (1989) 47 Cal.3d 798; Poeple v. Subramani (1985) 173 Cal.App.3d 1106; People v. Newton (2007) 155 Cal.App.4th 1000.)

Lesser-included offenses

Driving under the influence of alcohol is not a lesser-included offense of driving under the influence of both alcohol and drugs. (See People v. Cady (2016) 7 Cal.App.5th 134 [VC23153(a) is not LIO of VC23153(f).)

Prior convictions

Juvenile adjudicaitons

Juvenile adjudications don't count.

Welf. & Inst. Code, § 203

People v. Bernard (1988) 204 Cal.App.3d Supp. 16

Sequence of priors

One prior need not be before the other

People v. Baez (2008) 167 Cal.App.4th 197

Pending priors

Where the third prior is pending and has not yet resulted in conviction, it can't be used at prelim to make it a fourth and felony. (People v. Casillas (2001) 92 Cal.App.4th 171.)

A common situation is that a defendant has two prior DUI convictions and two pending DUIs. Because the DUIs are pending and not convictions yet, the defendant doesn't have a third DUI prior to establish the requisite for felony DUI. The pending DUI can be charged as a prior in a complaint, even though it has not resulted in a conviction yet, though the conviction must be entered by time of sentencing. (People v. Albitre (1986) 184 Cal.App.3d 895.)

People v. Snook (1997) 16 Cal.4th 1210 People v. Superior Court (Alvarez) 207 Cal.App.3d 464 People v. Lettice (2014) 221 Cal.App.4th 139 People v. Valladoli People v. Thomas (1994) 25 Cal.App.4th 921

Kernan v. Cuero (2017) 138 S.Ct. 4.

Out-of-state priors

For sentencing purposes

An out-of-state prior is priorable if it had been committed in California, the out-of-state prior would have been considered a DUI. (Veh. Code, § 23626.) Specifically:

In the criminal context, a defendant whose prior conviction was suffered in another jurisdiction is subject to the same punishment as a person previously convicted of an offense involving the same conduct in California. (Citation.) Enhancement is only permissible when the conduct underlying the foreign conviction would meet all of the elements of the California offense. (Citation.) In making that determination, the trier of fact may look to the entire record of the conviction, but no further. (Citation.) . . .

If the statutory definition of the crime in the foreign jurisdiction contains all of the necessary elements to meet the California definition, the inquiry ends. If the statutory definition of the crime in the foreign jurisdiction does not contain the necessary elements of the California offense, the court may consider evidence found within the record of the foreign conviction in determining whether the underlying conduct would have constituted a qualifying offense if committed in California, so long as the use of such evidence is not precluded by rules of evidence or other statutory limitation.

(People v. Crane (2006) 142 Cal.App.4th 425, 433.)

Note that many states punish merely "operating" a vehicle while California requires "driving," volitional movement. (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 769.) For example, siting in the driver's seat with engine on but parked is operating a car, but not driving it. Operating is not the same as driving. (Isaac v. Department of Motor Vehicles (2007) 155 Cal.App.4th 851.)

Also, DUI in California is "impairment to an appreciable degree," not "to the slightest degree, as in other states. (People v. Crane (2006) 142 Cal.App.4th 425, 432.)

Vehicle Code 23626

A conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, is a conviction of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code for the purposes of this code.

For DMV purposes

For DMV purposes, for out-of-state priors to be priorable, they need only be substantially similar, and not exactly the same as a court would require. (Veh. Code, §§ 13363, subd. (b); 15023, subd. (c)). For example, a Colorado DUI law that punished driving impaired to the slightest degree was substantially similar to California's DUI law. (McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677) Operating is not substantially similar as driving. (Isaac v. Department of Motor Vehicles (2007) 155 Cal.App.4th 851, 861.)

49 State Table

State	Statute	Priorable?	Caselaw	Notes
Alabama
Alaska
Arizona	ARS 28-1381	No	People v. Self (2012) 204 Cal.App.4th 1054
Arkansas
Colorado		Probably	People v. Crane (2006) 142 Cal.App.4th 425
Connecticut
Delaware
District of Columbia
Florida	Florida 316.193	No	Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1522
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

Passengers under 18 in car

Veh. Code § 23572 for Passengers under 14

• 1st DUI, +48 hours
• 2nd DUI, +10 days
• 3rd DUI, +30 days
• 4th DUI as misdemeanor, +90 days

(a) If any person is convicted of a violation of Section 23152 and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed:

(1) If the person is convicted of a violation of Section 23152 punishable under Section 23536, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part of which shall be stayed.

(2) If a person is convicted of a violation of Section 23152 punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed.

(3) If a person is convicted of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed.

(4) If a person is convicted of a violation of Section 23152 which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed.

(b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven.

(c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident.

Driving under the influence on federal land

Under the Assimilative Crimes Act, 18 U.S.C. § 13, state law is incorporated into federal law on federal land where there is not a federal law on point. (United States v. Carlson (1990) 900 F.2d 1346.)

An important point to remember that for a federal DUI, like all out-of-state DUIs, if the client wishes to have California driving privileges restored, the client will need to complete the DUI classes as required by VC13352. It doesn't matter that the federal court didn't require it; the federal DUI is treated as if it were a California DUI, with all the conditions that attach. (Moomjian v. Zolin (1993) 12 Cal.App.4th 1606, 1613 [holding that a driver should have complied with California probation conditions for Georgia DUIs in order to have license re-instated].)

National Park Service land

DUIs on a National Park Service land are slightly different. There is an explicit federal offense under 36 CFR § 4.23 for DUI on National Park Service land. Like state DUI, there is a DUI count, 36 CFR § 4.23(a)(1), and a 0.08 per se count, 36 CFR § 4.23(a)(2). However, there are several important distinctions. First, the CFR criminalizes "operating or being in actual physical control of a motor vehicle," which covers a broader range of conduct than the Californian definition for driving, which is "volitional movement". (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 769.) For example, siting in the driver's seat with engine on but parked is operating a car, but not driving it. Second, the CFR requires impairment that renders one "incapable of safe operation" while California only requires impairment "to an appreciable degree."

The CFRs have an implied consent law. (36 CFR § 4.23(c).)

Motion to Suppress Issues

Blood draws

Blood draws are searches. (People v. Robinson (2010) 47 Cal.4th 1104, 1119–1120.)

Blood draw must be in a reasonable manner. (Schmerber v. California (1966) 384 U.S. 757, 771-772.)

Blood draws are not justified by exigent circumstances. (Missouri v. McNeely (2013) 569 U.S. 141.)

Blood draws are not justified as a search incident to arrest. (Birchfield v. North Dakota (2016) 479 U.S. ___, 136 S.Ct. 2160

Implied consent from getting a driver's license is not consent to a blood draw. (People v. Mason (2016) 8 Cal.App.5th Supp. 11.)

(People v. Harris (2014) 225 Cal.App.4th Supp. 1, 3.)

Search conditions expressly for alcohol for a probationer allow warrantless blood draws. (People v. Cruz (2019) 34 Cal.App.5th 764.)

Mitchell v. Wisconsin (2019) ___ U.S. ___ [139 S.Ct. 2525]

Defenses

General defense

• Quality of driving
  • Other reasons for impairment
• Odor of alcohol
• Wet and watery eyes
• Slurred speech
• Poor balance and coordination
• Performance on field sobrety test
• Admission to drinking alcohl
• Officer opinion on impairment
• Expert's opinion on impairment

Post-driving drinking

Presumption of BAC within 3 hours.

Legally prescribed drug

Being under the influence of a legally prescribed drug or an over-the-counter drug is not a defense. (Veh. Code, § 23630.)

Studies

Drugs

Biasotti, A.A., Bloand, P., Mallory, C., Peck, R., and Reeve, VC, Marijuana and Alcohol: A Driver Performance Study, A Final Report (Sacramento, CA: Cal. Dept. of Justice, 9/86);

Bates, Michael N., and Blakely, Tony A., "Role of Cannabis in Motor Vehicle Crashes," Epidemiological Review, 1999, vol. 21,--No evidence that cannabis alone increases the risk of culpability for traffic crash fatalities or serious injuries.]