May 25, 2009 By Wallin & Klarich

To obtain a conviction under California Vehicle Code 23152(a), the prosecution must prove that: (1) defendant drove a vehicle; (2) while under the influence of any alcoholic beverage or drug, or the combined influence of any alcoholic beverage and drug.

First of all, “driving” under California DUI law is not as straightforward as it may appear. “Driving” requires only “volitional movement of a vehicle,” no matter how slight. Where there is no direct eyewitness evidence to driving, driving may be established by circumstantial evidence (Mercer v. DMV 1991 53 C3d at 769). Meaning, even if the officer initiating police contact did not see defendant drive a vehicle, the prosecution can meets its burden by presenting a collection of facts that, when considered together, can be used to infer a conclusion about whether defendant drove a vehicle.

Secondly, under California Vehicle Code 23152(a), proving defendant was “driving while under the influence of alcohol and/or drugs” does not require prosecution to prove defendant’s blood alcohol level was .08 or above. Why? Under 23152(a), the prosecution’s burden is merely to prove that because of any combination of alcohol and drugs, defendant’s physical or mental abilities “are so impaired that he or she no longer has the ability to drive a vehicle with the caution characteristics of a sober person of ordinary prudence under the same or similar circumstances.” (CAL CRIM 2110 DUI Jury Instructions).

Unfortunately, in their desire to validate drunk driving convictions, the courts have structured DUI laws as to allow the prosecution to seek a CA DUI offense conviction, even where defendant’s blood alcohol content is below .08 percent.

If you or a loved one is facing allegations of driving under the influence, please contact the California DUI specialists at Wallin & Klarich. Wallin & Klarich has over 30 years of experience handling DUI defense. Let the skilled California DUI lawyers at Wallin & Klarich advise you and ensure your rights and freedom are protected under the law. Contact Wallin & Klarich for a consultation at 1-888-280-6839. Also, visit us online at to learn more about your case and what can be done.

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