In California the Vehicle Code (hereafter CVC) sets forth the law on whether a person operating a vehicle (technically driving) is responsible for the operation of that vehicle while impaired by alcohol or drug or a combination of both said alcohol and drug.
23152 a VC DUI, is commonly known as misdemeanor drunk driving, a DUI, a DWI, a 502, or a deuce. A first time DUI, or a second such offense after ten (10) years have elapsed are both considered first time offenses.
Such offenses are punishable by a maximum of six (6) months in custody, a minimum fine of $390.00 to a maximum fine of $1000.00. A conviction requires your participation in a alcohol school for a duration for a minimum of 3 months to a maximum of 9 months. The failure to perform the class to conclusion shall have the effect of the DMV not allowing you to have a license to operate a vehicle in California until you complete such an ordered class. (even if the court deletes the order to complete the class you will not obtain a license to drive in California until after you have completed such a course.)
23152 b VC misdemeanor is also a drunk driving section but tells us you may be convicted of that count if you were driving a vehicle and your blood alcohol level was .08% or greater. This section was enacted to make easier the prosecution of drunk driving cases. If convicted of both of these sections you can only be punished by one. (see People v Duarte, (1984) 161 Cal App. 3rd 438)
If your blood/breath result was below .08% you will not be charged with violation of 23152 (b) but you will/may be charged with 23152(a) on the theory you were impaired for the purpose of operating a motor vehicle.
When you are stopped by an officer he is most likely looking for some probable cause to authorize his contact with you. You must be doing something wrong to give the officer reason to make contact with you. A stop on a whim or hunch will not authorize the officer to stop you and if such a warrantless stop is made you may be successful in defending the stop on constitutional grounds.
By way of example a defendant, Bob, was backing out of a parking stall at Jakes Jin Joint and hit another car. Instead of getting out of the car and seeing if there was any damage Bob drives off. The victim in his car get’s Bob’s car license number and calls the police about a hit and run [CVC 20002(a)]. The police respond to the house connected to the license number of the car. The car is in the driveway. Police knock on the front door but get no response.
The lights are on, music is heard to be playing, and noise appears to be coming from the backyard. The officer enters the gate, lets himself into the backyard and finds the Bob and his friend having drinks in the backyard. After taking Bob to the front yard and asking a ton of questions, and having Bob perform field sobriety tests Bob is arrested for hit and run and DUI. Result; The officer apprehended Bob in an area constitutionally protected making the arrest itself illegal. Case dismissed.
The stop of any vehicle may be for many reasons .. all valid; Speed, a failure to come to a complete stop, a blinking tail-light, no license plate light, no front license plate, throwing a lighted object from the car, loud music, weaving within a lane, or between the lanes, unsafe lane changes, driving too slowly, going the wrong way on an one way street, accidents, domestic arguments, and concerned citizens with officer verification. Are all valid reasons for an officer to contact you. Each contact initiated by police must be evaluated.
(There are other reasons for police contact not here covered but items that will be covered further on in this evaluation. They are 1. Police contact with a person who has failed to stop or makes it home before police interdiction. 2. Police contact with a person who has pulled over and has gone to sleep within his car because that was the safe thing to do. 3. Finding a motorist sleeping while the engine is running in lane number three or next to the curb lovingly pressed up against the vehicle in front, and, 3. Being contacted by an officer while you are outside of your car at a gas station or eatery.)
An officer has the right to stop or make contact with you if he has reasonable cause to believe a felony has been committed and you are the person who is connected to the crime or if that same officer believes a misdemeanor is being committed in his presence and you are the one committing said crime.
For the most part, the officer has a right to contact you. There are cases that support the opposite conclusion but those cases should be subject to review by an attorney and not evaluated by a non-attorney.
If you or your loved one have been charged with a 23152 offense, speaking with an attorney for a free case evaluation will help you to better understand the penalties you’re facing, as well as your options.