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.

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

Punishment

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.)

Lesser-included offenses

VC23152(a) is not lesser included of VC23152(f). (People v. Lady (2016) 7 Cal.App.5th 134.)

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

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).)

Defenses

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.]