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1st Offense DUI

California Vehicle Code Section 23152-

Driving under the Influence (“DUI”) is a crime in California. Most of the law governing DUI is governed under the California Vehicle Code (“Ca. Veh. C.”). A DUI conviction triggers several different penalties, many of which are “mandatory” under varying sections of the Vehicle Code.

How Can I be Convicted of

DUI as a First Offense in California?

A DUI case usually boils down to two main issues: whether you were “intoxicated” or ‘impaired” in some way and whether you were “driving” at the time. California defines “DUI” under Vehicle Code Section 23152. Below are “the elements” of DUI, which are facts that the prosecution has to prove in order to make somebody guilty of DUI.

In order to prove somebody guilty of DUI, the prosecution has to prove, beyond a reasonable doubt, that:

You were driving a vehicle AND

At the time of driving, at least one of the following:

You were “under the influence” of alcohol at the time they were driving

You had a BAC of at least 0.08%

If driving a commercial vehicle or a “ride for hire” vehicle, you had at least 0.04% BAC

You were under the influence of any drug OR

You were under the combined influence of any drug and alcohol second or third:

Also, in order to be convicted of DUI as a “second offense”, the prosecution must also prove that

The defendant was previously convicted of at least one (!) other DUI offense that occurred within the past ten (1) years

Can I be accused of

DUI even if I wasn’t drunk?

Notice that a DUI case does not always require the prosecution to prove that the defendant was “under the influence” of alcohol or was incapable of driving safely. 

For example, if a jury feels, beyond a reasonable doubt, that the defendant was driving a car with a BAC over 0.08%, then they will find that defendant “guilty” of DUI even if they also feel that the defendant was capable of driving safely. Similarly, in cases where the prosecution alleges that the defendant was merely “driving under the influence” of alcohol or drugs, they can prove circumstantially that the defendant had drugs or alcohol in their system such that it impacted their driving. For that type of DUI charge, the prosecution need not show that the BAC was over a certain limit, although evidence of the defendant’s high BAC would probably help convince a jury to find the defendant guilty.

If, however, the jury had reasonable doubt that the defendant was driving, or that the defendant’s BAC was above a certain level or whether the defendant was “under the influence, they would find the defendant “not guilty” of DUI.

Second or third

You should also notice that the fact of your prior offense is also something that the prosecution has to “prove” in order to be found guilty of second offense DUI in California. Prior offenses in other states count!

Defenses to a

DUI Charge in California

You were not driving the car

While it seems obvious, remember that the prosecution has to prove that the defendant was driving a vehicle, AND that, while driving, the defendant was “under the influence” of drugs or had a BAC above a certain limit. When the prosecution cannot show that the defendant was ever driving, or that the defendant was driving with too much alcohol in their system, then their case might be weaker.


In some DUI cases, the defendant is arrested on suspicion for DUI during a traffic stop, and testing done soon afterwards shows that they were intoxicated. In those cases, the prosecution might have an easier time proving that the defendant was, in fact, driving the car while intoxicated.


Consider the following example: Tatiana drives her car into town sober, she parks her car, walks to a bar, drinks all night, and returns to her car. She never starts her car or moves it but instead just sits inside the car and sleeps. If she was arrested and charged with DUI, she would probably be found “not guilty” because, while he did drive his car at some point, he did not do so while drinking or with a high BAC.

Insufficient Proof of Intoxication

In some DUI cases there are no test results available and the prosecution’s case rests largely on circumstantial proof that the defendant was intoxicated or under the influence of drugs or alcohol. To do this, the prosecution might base most of their case on evidence from “field sobriety tests”, if any were done. Examples of this include the “one leg stand” and “walk and turn” that police officers have DUI suspects perform before arresting them for DUI. However, field sobriety test are not always reliable indicators of intoxication. A well-prepared defense of a DUI case should look into whether police exaggerate or overstate the defendant’s “failures” on field sobriety tests.  Other factors like the weather, the terrain, or the defendant’s physical abilities may make it seem that they might be “failing” certain tests when in fact they were perfectly sober.

Improper or incorrect chemical testing

In many DUI cases there is chemical testing available in the form of breath or blood samples. In those cases, if the test results show that the defendant’s BAC was above the allowable amount, and the jury accepts those test results as true, then it does not matter that the defense proves that the defendant was not actually “too drunk to drive”, because driving with a BAC that is too high is still considered “DUI”.


One point that is worth clarifying: there is a difference between the “roadside” preliminary alcohol screening test and the chemical tests done after the defendant was arrested. The preliminary test (or “PAS” for short) is primarily meant to determine whether an officer has “probable cause” to arrest someone for DUI. A well-prepared defense of a DUI case should thoroughly investigate the differences between the PAS testing and any subsequent methods, because any problems might disrupt the prosecution’s ability to prove intoxication. The PAS test is always based on a breath sample. A “chemical test”, however, is usually taken after the defendant has already been arrested on suspicion of DUI. The results of this test are usually what a DUI prosecution is likely to base their case on.

Unlawful Search and Seizure

A good DUI defense attorney should always explore the possibility of a “motion to suppress” any evidence taken in their client’s case. Where police obtain evidence against a defendant through unlawful means, the court might be inclined to “suppress” or “keep out” that evidence at trial, forbidding the prosecution from using it against the defendant. This is true in all criminal cases. In DUI cases, however, a successful motion to suppress might be fatal to the prosecution’s case and could cause the case to be dismissed.