In California, drunk driving can be charged under two separate, but related sections in the Vehicle Code. Section 23152(b) is the charge for driving with a blood alcohol level equal to or above 0.08%. Even if a person is driving perfectly – no weaving, speeding or other violations of the Vehicle Code, they can still be charged with DUI under this section.
The prosecution must prove that you were doing two things:
1) driving and
2) had a blood alcohol at the time of 0.08% or above.
That’s it. Of course, there can still be a valid defense to a charge of DUI under 23152(b). Without “bad driving,” the prosecution must still be able to justify the validity of the traffic stop that led the detection of alcohol. If the underlying traffic stop was invalid, any evidence including the officer’s observations and the chemical test will be excluded from evidence, leaving the prosecution no choice but to dismiss the case.
The blood alcohol test must be valid, both scientifically and legally. By scientifically, I mean the results must be reached using the appropriate collection methods, testing methods and analysis. The devices used to measure alcohol on your breath must meet certain calibration and testing standards to be valid. A blood sample must have been obtained in the proper manner and analyzed correctly to be valid and admissible. If you gave a blood sample after your arrest for DUI, you are entitled to have your blood sample retested by an independent laboratory to verify whether or not the government’s results are accurate or not. The results must be valid legally, too. By that, I mean that there are certain specific procedures that must be done by the arresting officer in order to make the blood alcohol results admissible. You must be given your choice of test. You must be given an opportunity to have a sample of your blood preserved for retesting if you choose. The testing must be done in a certain manner to comply with the law. With all the specific requirements, often things are overlooked. Don’t assume that because you were told your blood alcohol was above the 0.08% limit that you have to plead guilty. Have your case evaluated by an experienced defense attorney.