For the most part, DUI defendants in Los Angeles County will be prosecuted by the individual City Prosecutor from the city where the arrest occurred. Some misdemeanors and certainly all felonies are prosecuted by the Los Angeles County District Attorney. Prosecutors derive their power to prosecute DUI offenders under specific sections of the California Vehicle Code:
CVC section 23152 (a)
It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage or drug to drive a vehicle.
Essentially, this means that a person can be prosecuted for a misdemeanor crime if they have an intoxicating substance in their body and are found driving while under the influence of that substance. Impairment can be caused by the consumption of legal prescription medications, illicit drugs, alcohol; or a combination of any of these. A specific alcohol level or a specific content of the drugs in the body is not required to prove this crime. The mere presence of the alcohol or drug in one's blood stream is sufficient to prove guilt if it can be shown that the accused person was under the influence of that substance at the time of driving.
CVC section 23152 (b)
It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
Essentially this means that regardless of your height, weight, age, gender, ethnicity or metabolic rate; it is a misdemeanor crime to drive a vehicle with 0.08 percent of alcohol in your blood stream. If it can be proven that a person drove a vehicle; was legally stopped or contacted by the police; and had an alcohol level of 0.08 or more in their blood stream, they are presumed impaired. This section is the cornerstone of most prosecution cases because impairment does not have to be proved; it is presumed.
CVC section 23152 (d)
It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle.
Even though 0.04 is 50% below the nationally recognized level for presumed alcohol impairment, those persons driving commercial vehicles are held to much higher standards. In this case, if a person is driving any commercial vehicle, as defined in CVC section 15210, and is found to have an alcohol level at or above 0.04 percent, they may be convicted of a misdemeanor crime.
CVC section 23140 (a)
It is unlawful for any person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
Even though most scientists agree that a person is not generally impaired with an alcohol level of 0.05 percent, this section of the Vehicle Code permits the presumption that a person has violated the law if they are under the age of 21 and have an alcohol level of 0.05 or more in their blood.
Felony DUI Laws
In some instances, an arrest for DUI can lead to prosecution at the felony level. Generally speaking, DUI cases can only be filed as felonies if one of the following exists:
CVC section 23566 (a)
If a person is convicted of a violation of Section 23153 and the offense occurred with 10 years of two or more separate violations of 23103, 23152, or 23153, or any combination of these violations, that resulted in convictions, that person shall be punished by imprisonment in the state prison for a term of two, three or four years...
Essentially, if a person is convicted of felony DUI and has two or more prior convictions for "wet reckless" or DUI, the judge must sentence that person to state prison.
CVC section 23550 (a)
"If a person is convicted of Section 23152 and the offense occurred within 10 years of three or more separate violations of Sections 23103, 23103.5, 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the state prison or in a county jail for not less than 180 days.
So, this means if a driver is convicted of a 4th DUI within 10 years of three prior convictions for Wet Reckless or DUI, the case shall be punished as a felony.
CVC section 23153 (a)
It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.
In these cases, the prosecutor must prove the defendant "drove" a vehicle and that he violated any other section of law. This can be established by showing the accused was speeding, weaving, running stop signs or virtually any other provision of law. If these two elements are proven; and, if the accused is proven to be impaired by any intoxicating substance; and, if the event caused bodily injury to another person, the case may be filed as a felony.
It is important to note that the law permits filing at the felony level for an injury, "however slight."
CVC section 23153 (b)
It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.
In these cases, the prosecutor must prove the defendant "drove" a vehicle and that he violated any other section of law. Again this can be established by a variety of moving violations or any other provision of the law. If these two elements are proven; and, if the accused is shown to have an alcohol level of 0.08 or more in his or her blood; and, if the driving causes an injury to another person, "however slight," the case may be filed as a felony.
CVC section 23153 (d)
It is unlawful for any person, while having 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial vehicle, as defined in section 15210, and concurrently do any act Forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.
Here again, because of the higher standards applied to professional drivers, if that driver is operating a commercial vehicle with an alcohol level of 0.04 percent or greater and causes any injury, "however slight," to another person, the case may be filed as a felony.
CVC section 23550.5 (a)
A person is guilty of a public offense, punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000) if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of the following:
- A prior violation of 23152 that was punished as a felony under section 23550.
- A prior violation of section 23153 that was punished as a felony. (3) A prior violation section 192 of the Penal Code that was punished as a felony.
Essentially, this means that if a driver is arrested on a new charge of DUI and, if that person has a prior felony conviction for DUI or Manslaughter within 10 years, the new case may be filed as a felony.
Penal Code section 191.5, "Gross Vehicular Manslaughter"
(a) "Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of vehicle, where the driving was in violation of Section 23140, 23152 or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, and with gross negligence."Gross vehicular manslaughter while intoxicated in violation of subdivision (a) is punishable in the state prison for 4, 6, or 10 years."
Penal Code section 187, "2nd Degree Murder."
Also known as a "Watson Murder," this section permits prosecutors to file a manslaughter case as murder if they can show "malice aforethought." This means the killing occurred while the driver knew, or reasonably should have known, that driving while impaired is likely to cause death.Penal Code section 188 reads, "malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."
Simply put, prosecutors will seek to upgrade a gross vehicular manslaughter case to a case of 2nd degree murder if they can prove that in addition to impaired driving that resulted in death of a human being, the driver knew or reasonably should have known that DUI was likely to cause death. This can be demonstrated by proving a person signed a "Watson Admonition." This is an advisal signed by defendants in DUI cases where they acknowledge the dangers of DUI. If you have a prior DUI conviction and signed a Watson Advisal, the prosecutors will look to that form to show you knew the dangers of DUI. If no Watson Advisal is available, the prosecutors will then look to see if the accused person ever attended a DUI school where the curriculum included instruction on the dangers of DUI.