Drunk driving offenses

• Author: Paul Burglin/Barry Simons/Ed Kuwatch
• Pages: 55-123

DRUNK DRIVING

OFFENSES

1-1

CHAPTER 1

DRUNK DRIVING OFFENSES

§1:10 BASIC DRUNK DRIVING OFFENSES

§1:11 VC §§23152

§1:11.1 A Comparison of DUI and the Per Se Limit

§1:11.2 Direct Breath 0.08% Per Se Offense

§1:11.3 Double Jeopardy Attack on 0.08% Per Se Statute

§1:11.4 Vagueness Attack on 0.08% Per Se Statute

§1:11.5 Direct Breath Per Se Offense Based Upon Drinking After Driving

§1:11.6 “Drive”

§1:11.7 Driving on Private Property and Non-Highways

§1:11.8 “Vehicle”

§1:11.9 Impairment by Alcohol—Suff‌iciency of Evidence

§1:11.10 Test Results Near the Limit—Suff‌iciency of Evidence

§1:11.11 Proof of Impairment Based Upon Bad Judgment

§1:11.12 Multiple Charges From Same Act or Course of Conduct

§1:11.13 Allegations of DUI Drugs Without Evidence in Support

§1:11.14 Alcohol Only DUI not Necessarily Lesser Included Offense of Alcohol and

Drug DUI

§1:12 DUI Based Upon Drugs

§1:12.1 Impairment to an Appreciable Degree

§1:12.2 Proof of Impairment Based Upon Bad Judgment

§1:12.3 Forensic Science Mostly Favors the Defendant

§1:12.4 Common Prescription Medications

§1:12.5 Illicit Drugs

§1:12.6 Expert Testimony and Drug Recognition Experts (DRE)

§1:12.7 NHTSA Training Materials on DRE

§1:12.8 Evidence Issues

§1:12.9 Zero Tolerance Trend Toward Drug-Related Driving Offenses

§1:12.10 Allegations of DUI Drugs Without Evidence in Support

§1:12.11 No Need to Name Every Drug

§1:13 VC §23152(c): Driving by Addicted Person

§1:14 VC §§23152(d) and (e): Commercial and “Passenger for Hire” 0.04% Per Se

§1:15 VC §§23550 and 23550.5: Felony Drunk Driving Due to Prior Convictions

§1:15.1 VC §23550: Three Priors

§1:15.2 VC §23550.5: Felony-Punished Drunk Driving Prior Within 10 Years

§1:15.2.1 Meaning of “Punished As A Felony” And Non-

Applicability Of Felonies Reduced To Misdemeanors

§1:16 Under 21; Juveniles

§1:16.1 VC §23136: 0.01% Admin Per Se Under 21

DRUNK DRIVING

OFFENSES

California Drunk Driving Law 1-2

§1:16.2 VC §23140: 0.05% Per Se Under 21

§1:16.3 VC §§23152 and 23153

§1:16.4 Juvenile Drunk Driving Prosecution Procedure

§1:16.4.1 Deferred Entry Of Judgment On Juvenile Felony DUI

§1:17 Chemical Test Refusal (VC §23577)

§1:18 Child Endangerment Charge (PC §273a) / Passenger Under 14 Enhancement (VC

§23572)

§1:19 Reckless Speed Enhancement (VC §23582)

§1:20 DRUNK DRIVING CAUSING INJURY

§1:21 VC §23153

§1:21.1 Forbidden Act or Neglected Duty; Supporting Offense

§1:21.2 Proof of Forbidden Act and/or Neglected Duty

§1:21.3 Pleading of Forbidden Act and/or Neglected Duty

§1:21.4 Double Jeopardy Attack on Supporting Offense

§1:21.5 Cause: But for, Proximate, Concurrent, Superseding and Intervening

§1:21.6 Bodily Injury to Another

§1:21.6.1 Great Bodily Injury

§1:21.6.1(a) “Accomplice” Defense To GBI

§1:21.7 Charging More Than One Person Injured or Killed

§1:22 VC §23153(d): Commercial 0.04% Per Se With Injury

§1:25 REDUCTION OF FELONY DUI TO MISDEMEANOR

§1:30 VEHICULAR MANSLAUGHTER

§1:31 PC §191.5(a): Vehicular Manslaughter While Intoxicated With Gross Negligence

§1:31.1 Elements of the Offense

§1:31.2 Punishment

§1:32 PC §191.5(b): Vehicular Manslaughter While Intoxicated

§1:32.1 Elements of the Offense

§1:32.2 Punishment

§1:32.3 Use of VC §23140 as the Drunk Driving Offense

§1:33 Death of a Human Being

§1:33.1 Death Requires Injury

§1:33.2 Death of a Fetus

§1:33.3 Charging More Than One Person Killed

§1:34 Drunk Driving Murder (Watson)

§1:34.1 Causation

§1:34.2 Punishment

§1:34.3 Voluntary Intoxication and Watson

§1:35 Lesser Related vs. Lesser Included Offense of Murder

§1:36 Jury Instructions

§1:36.1 Unlawful Act

§1:36.2 Lawful Act in an Unlawful Manner

§1:36.3 Proximate Cause

§1:37 Retrial After Mistrial

§1:38 Punishment and DMV Action

§1:39 Felony Drunk Driving Due to Prior Convictions

DRUNK DRIVING

OFFENSES

1-3 Drunk Driving Offenses

§1:40 COMMERCIAL VEHICLES AND COMMON CARRIERS

§1:41 49 U.S.C. §§2701 et seq.: Commercial Motor Vehicle Safety Act

§1:41.1 Arrest and Detention for Commercial Offenses

§1:41.2 VC §23152(d): Commercial Driving 0.04% Per Se

§1:41.3 VC §34501.15: Commercial Driving Over 0.01% BAC

§1:41.4 Transportation Employee Drug and Alcohol Testing

§1:42 Common Carrier Operation Under Inf‌luence

§1:42.1 Pub. Util. C. §§7818, 7679 and 21407.5; Harb. & Nav. C. §655: California

Common Carrier Offense

§1:42.2 18 U.S.C. §§341 et seq.: Federal Common Carrier Offense

§1:50 OTHER DRINKING/DRIVING OFFENSES

§1:51 PC §664: Attempted Drunk Driving

§1:51.1 Arrest

§1:51.2 The Offense

§1:51.3 Plea Bargaining Signif‌icance (No DMV Consequence for Attempted DUI)

§1:51.4 Right to Jury Instruction on Attempt in Drunk Driving Case

§1:52 Drunk Boating, Bicycling and Scooters

§1:53 PC §193.8: Lending Vehicle to Intoxicated Juvenile

§1:54 Drunk Boating

§1:54.1 California Drunk Boating

§1:54.1.1 Drunk Boating Diversion

§1:54.1.2 Drunk Boating With Injury

§1:54.1.3 Drunk Boating With Death

§1:54.2 Federal Drunk Boating

§1:54.3 Field Sobriety Testing in the Marine Environment

§1:55 “Motorized Scooter” Drunk Driving

§1:60 DUI ON FEDERAL PROPERTY

§1:60.1 Land Administered by the National Park Service

§1:60.2 Other Federal Land and the Assimilative Crimes Act (ACA)

§1:61 Right to Jury Trial

§1:62 Penalties and Sentencing

§1:63 Procedure in Federal Court

§1:63.1 Personal Appearance of Defendant Required; Exception

§1:64 Rules of Evidence in Federal Court

§1:65 Appeals in Federal Court

§1:66 Expungements in Federal Court

§1:67 Use of Federal Conviction as Prior Offense

§1:70 FEDERAL PROGRAMS

§1:70.1 Commercial Motor Vehicle Safety Act

§1:70.2 National Driver Register