I’m charged with driving under the influence of alcohol or drugs.   Am I going to be convicted? What is my defense?

The first place to look when charged with a crime is the California Jury Instructions, or CALCRIM. These jury instructions are what judges and juries use to decide whether or not to vote guilty or not guilty at trial. Although the vast majority of cases settle or resolve with a negotiated plea bargain, it is extremely important to know what the prosecutor must prove at trial in order to know precisely how to defend against these charges long before trial begins.

CALCRIM 2110 states:

2110. Driving Under the Influence

The defendant is charged [in Count ______] with driving under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug].

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant drove a vehicle;

AND

  1. When (he/she) drove, the defendant was under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug].

A person is under the influence if, as a result of (drinking [or consuming] an alcoholic beverage/ [and/or] taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.

[An alcoholic beverage is a liquid or solid material intended to be consumed that contains ethanol. Ethanol is also known as ethyl alcohol, drinking alcohol, or alcohol. [An alcoholic beverage includes <insert type[s] of beverage[s] from Veh. Code, § 109 or Bus. & Prof. Code, § 23004, e.g., wine, beer>.]] [A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.] [If the People have proved beyond a reasonable doubt that the defendant’s blood alcohol level was 0.08 percent or more at the time of the chemical analysis, you may, but are not required to, conclude that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense.] [In evaluating any test results in this case, you may consider whether or not the person administering the test or the agency maintaining the testing device followed the regulations of the California Department of Health Services.] [It is not a defense that the defendant was legally entitled to use the drug.] [If the defendant was under the influence of (an alcoholic beverage/ [and/or] a drug), then it is not a defense that something else also impaired (his/her) ability to drive.]

CALCRIM 2111 states:

  1. Driving With 0.08 Percent Blood Alcohol

The defendant is charged [in Count ______] with driving with a blood alcohol level of 0.08 percent or more.

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant drove a vehicle;

AND

  1. When (he/she) drove, the defendant’s blood alcohol level was 0.08 percent or more by weight.
[If the People have proved beyond a reasonable doubt that a sample of the defendant’s (blood/breath/urine) was taken within three hours of the defendant’s [alleged] driving and that a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, you may, but are not required to, conclude that the defendant’s blood alcohol level was 0.08 percent or more at the time of the alleged offense.] [In evaluating any test results in this case, you may consider whether or not the person administering the test or the agency maintaining the testing device followed the regulations of the California Department of Health Services.]

Whether or not you will be convicted of these charges largely depends on mounting a strong defense. We at The Hong Firm are committed to building a fierce defense for you – always in anticipation of trial.