My citation says I am charged with Vehicle Code Sections 23152(a) and 23152(b)? Why am I being charged with two crimes?
California law defines the crime of DUI two different ways: Vehicle Code 23152(a) is driving while under the influence of alcohol or drugs or both; Vehicle Code 23152(b) is driving with a blood alcohol level of .08 or higher. California law considers these to constitute two separate misdemeanor offenses. DUI suspects routinely get charged with both.
How does this play out in DUI court? If you plead guilty to one of the offenses as part of a DUI plea bargain, the other is almost always dismissed as part of the deal. If you go to trial, you go to trial on both DUI charges. The jury could find you guilty of either, neither or both. Even if the jury found you guilty of both DUI offenses, you would really only be sentenced and punished as to one of them.
Keep in mind the distinction between the two charges. In theory, someone could be guilty of Vehicle Code 23152(a)—driving under the influence—and not guilty of 23152(b), driving with a BAC .08 or greater. This is the case because different people become “under the influence” at different BAC levels. Someone could be a .06 BAC, well within the legal limit, but because of his/her sensitivity to alcohol, nevertheless be under the influence.
On the flip side, someone could be guilty of Vehicle Code 23152(b), but not 23152(a). For example, someone with a higher tolerance could be driving at a .09 BAC, above the legal limit, but still not be under the influence. This person is less sensitive to alcohol. Therefore, he or she can sustain a higher blood alcohol content without suffering the mental and physical impairment that compromises his ability to drive a car safely.
Different experts hold different opinions as to the BAC level at which everyone in the population becomes under the influence, regardless of individual tolerance levels. Dwayne Beckner, a respected toxicologist who formerly headed the blood alcohol unit at the Los Angeles Sheriff’s Crime Lab, believes that this threshold level is a .10 BAC. Traditionally, most prosecution “experts” (usually police department criminalists) who testify at DUI trials give the opinion that the threshold level is a .08 BAC.
Now, however, a group of criminalists with the Los Angeles Sheriff’s Department are testifying at Los Angeles County DUI trials that they believe the threshold is a .05 BAC. We believe this position is entirely without merit or scientific support. We think this new “.05 orthodoxy” is based not on science, but on politics and an effort by law enforcement to try to win more Los Angeles County DUI trials.