What is a DUI?
Felony or Misdemeanor DUIThe difference between a misdemeanor and a felony is misdemeanor driving under the influence charges means that the charge involved no injury or property damage and the penalty is up to 6 months in jail, whereas a felony 1) has injury and the penalty could be as much as three years in a state prison, or 2) prior misdemeanors, or 3) one prior felony DUI in the last 10 years.
The definition of VC 23152:
VC 23152: Alcohol and or Drugs:(a). It is unlawful for any person who is under the influence of an intoxicating beverage, or under the combined influence of an alcoholic beverage or drug to drive a vehicle. (b) It is unlawful for any person who has a .08 percent or more by weight to drive a vehicle.
The Law in California: The California Vehicle Code has two sections whereby you can be charged with driving under the influence ('DUI'): The most common is CVC Section 23152(b). It is unlawful for any person who has 0.08 % (or more) of alcohol in his or her blood to drive a car. To convict you, the District Attorney ('DA') must prove: 1) you were driving a car, and 2) your blood alcohol level was .08 or above at the time of driving.
Most people who are arrested for DUI are also charged with CVC Section 23152(a). Basically, this section makes it illegal to operate a car while 'under the influence' of any alcohol or drug. Notice there is no minimum blood alcohol level. Theoretically, you can be arrested and charged for DUI with a blood alcohol level of .01%, while 'under the influence' of your legally prescribed medication, or even after taking some over-the-counter medicine. Of course, this section can also be used to charge people with DUI of any illegal drug, like marijuana (difficult to prove) or cocaine. In CVC Section 23152(a), the DA must prove that: 1) you were driving a car, and 2) you were 'under the influence' while driving.
What YOU need to know
You have the right to remain silentYou don't have to tell the officer where you're coming from. You don't have to tell the officer if you've been drinking. You don't have to tell the officer what you've been drinking.
Being pulled over is frightening, especially if you have had even the slightest amount to drink prior to driving. The natural tendency is to comply with all of the officers’ demands. Make no mistake: it is not a good idea to be belligerent with the officers, and it is illegal to resist or delay their investigation.
However, other than identifying yourself, assert your right to remain silent! The officers will want you to admit that you were driving, or how much you had to drink, so that they won’t have to prove these facts through physical evidence. Just tell them that you assert your right to remain silent. That way, your answer can’t be used against you.
You only have to give a blood or breath sample AFTER you have been arrested.During the course of a DUI investigation, you may be asked to provide a sample of your breath by blowing into a device called a Preliminary Alcohol Screen (PAS). It is most frequently given as part of the field sobriety tests. The Vehicle Code requires that you be told that you may refuse this test. Be aware that you do not have to provide the PAS test and doing so will most likely be used by the officer to justify your arrest.
The best advice is to ask the officer whether you have the right to refuse a breath test. After you have been arrested, the “implied consent” law requires that you give either a breath sample or a blood sample. Failure to do so will result in a one year suspension of your driving privilege. [Note: This applies if you are OVER 21. If you are younger than 21, you must submit to the PAS test]