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Tag Archives: DUI

New Changes for Travel to Canada with a DUI

Canada recently changed some of its legislation regarding entering their country with a DUI conviction. Since the changes were so sudden (and took place at the end of the year in December, 2018), it is creating a mess for American travelers with prior convictions who are trying to get to Canada for work, business or family trips.

We have a guide on our website to help answer basic questions about whether or not you can travel to various countries with a criminal conviction, including a DUI.

Here is some information on the changes to Canadian law.

On December 18, 2018, Canada’s new impaired driving laws went into effect. Under the new laws, driving while intoxicated by drugs or alcohol is now considered a serious offense, placing it in the same legal category as murder, aggravated sexual assault, and drug trafficking. The same is true of what you may think of locally as reduced DUI offences like reckless driving, DWAI or wet reckless; these are all now in the same category as those other previously mentioned serious offences.

It doesn’t matter if the driver caused an accident or hurt someone, simply being behind the wheel while legally impaired is enough to result in significant prison time. The new law also doubled the previous maximum penalty, from 5 years to 10. This also means that Canadian immigration officials treat foreign DUI convictions much more seriously than they did before and, as a result, it will be more difficult to obtain a permit to travel.

If you are currently considering a visit to Canada and you have a DUI or similar offense on their record from after December 2018, these new rules could make it much more difficult for you to enter the country. Reducing or amend your charges in an effort to facilitate travel may help you enter Canada. While the new law will not be applied retroactively, anyone with an old DUI on their record should still be prepared to face increased scrutiny and questioning at the border. Without legal assistance, travelers with a DUI on their records from December 2018 or later will likely find themselves unable to enter Canada.

If you have questions regarding an Orange County California DUI charge and how we can help you handle that in a way that may help you enter Canada, please contact our law firm.

Using an expert witness in a DUI case

Using an expert witness in a DUI case

In the courtroom

An expert witness can be helpful in a DUI case to help provide proof in support of defenses that require particular specialized knowledge. Using an expert witness in a DUI case can be extremely helpful in proving a number of issues, as discussed below.

The primary purpose of any expert, when hired by either side, is to educate – that is to provide evidence in the form of an expert report and/or testimony that educates the DMV hearing officer, or the judge, or even the jury, in a way that presents information that is helpful to a client, towards a certain conclusion.

Some of the information you might want to present in a DUI case could be presented by someone who is not an expert.  The problem with using non-experts is that a DMV hearing officer, or a judge hearing the case, might exclude or strike down layman testimony as lacking proper foundation or requiring an expert witness to give an opinion as to any complex issue that requires an expert. For that reason, courts and other hearings require experts who can provide their qualifications, experience, and opinions.

There are also reasons in a DUI where you will want an expert witness as a strategy in defending a DUI case. Using an expert witness in a DUI case can give particular testimony extra weight, authority, and emphasis.  

Expert witnesses are also subject to cross examination by the other side.

The law on who is an expert witness, and what they can testify to.

California Evidence Code section 720 contains the authority under the law, defining what an expert witness is, and what they can testify to:

720.  (a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.
   (b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.

Using a forensic alcohol expert witness in a DUI case at the DMV and in court

Forensic toxicology is the study of the presence of drugs or alcohol and their affects on the human body and human behavior. A forensic toxicologist, therefore, is able to testify about the concentration of alcohol and/or drugs in a person’s body and how impaired that person might be, given such a concentration. Using an expert witness in a DUI case that knows about intoxication and impairment, key issues in any DUI is always helpful.

A toxicology expert may also testify about flaws in breath or blood tests, such as an incorrectly calibrated breathalyzer machine or the use of improper scientific methods during the analysis of a blood sample. The prosecution will usually also provide their own experts, including forensic toxicologists who work in crime labs for the police. Testimony provided by each side’s experts can and often does determine the outcome in a DUI trial, so it is imperative to have qualified experts on your side.

Using an expert witness in a DUI case may be required for certain complex issues. As a science, blood testing and breath testing is the domain of experts who are familiar with the studies and requirements for accuracy.

An expert can be extremely helpful in that the expert can comment on, and possibly criticize, the way in which an alcohol or drug level was determined in a DUI class. They can outline the way why those results might be inaccurate. This can include incorrectly calibrated breathalyzer machines, incorrect use of the machinery, or inexact scientific methods of blood analysis. A common use of an expert witness in a DUI is to fight the retrograde extrapolation typically presented by the prosecution – which is often improperly used to speculate as to how many drinks the defendant or driver consumed, or might be used to estimate what the blood alcohol level was at the time of driving for the defendant.  That evidence is often based upon a number of assumptions, each with a wide range of possibilities, that the expert can easily point out.

Using an expert witness in a DUI case at the DMV, can lead to a showing that the DMV has insufficient evidence, or invalid evidence, as to one of the relevant issues at a DMV hearing — include the major issue of whether the person was above a .08% alcohol level at the time of driving, or whether the person was above a .01% if under the age of 21 or if on DUI probation.  Rising blood alcohol defenses, or errors in the maintenance, calibration, or measurement of breath or blood in a DUI case, is best presented through an expert witness.

In court, all elements of a DUI must be proven beyond a reasonable doubt. Showing a judge, jury, or prosecutor an expert witness report detailing facts supporting a rising blood alcohol defense, impairment of drugs (and interactions between drugs, or with alcohol) for DUI Drug (DUID) cases,  or showing any errors in the maintenance, calibration, or measurement of breath or blood in a DUI case, is best presented through an expert witness, who can also testify to the state’s standards and the scientific literature and studies that support defenses in the case.

In most cases, our Orange County DUI attorney uses Henry Greenberg, of Forensic Analytical Consultants, here in Orange County, although we have used and consulted with expert witnesses Dewayne Beckner, Daryl Clardy, and Okorie Okorocha, as to forensic alcohol testing, detection, and error issues.

Using police procedures expert witness in a DUI case

Often, police will act in a way that violates their training, or explicit procedures under the law, or the rules from their own department.

The most common one known by almost everyone is the right against self-incrimination – the Miranda rights, read by police before any custodial interrogation.  Any confessions, or admissions, or statements, that were made without these warnings while in custody or detention, can be the subject of a motion to exclude those statements as evidence.

More importantly for a DUI case in court, or at trial, our Orange County DUI Lawyer will obtain the DUI police procedures as to observation and contact with a driver, field sobriety testing, safety of the officer and the testing subject, and the methods of collection of evidence to be used in the case, can be testified to by an expert.

With DMV hearings in a DUI case, one of the issues at the DMV hearing is whether or not the officer followed all the procedures and laws to place someone under a “lawful arrest”.  The issue of whether that occurred or not can be the domain of an expert witness opinion also.

Our DUI attorney Orange County has used expert witness Dewayne Beckner, who used to train police officers in his role as leader of the Los Angeles County Sheriff’s Department alcohol detection unit, for testimony related to violations of police procedures, the law or standard of care violations, and problems with alcohol detection and procedures.

Using a field sobriety test expert witness in a DUI case

A field sobriety test expert can comment on the validity of the administration of the test or tests are given to the accused and point out any mistakes that may have been made by the arresting officer.

With DUI cases, officers are trained in alcohol detection, stopping potential drunk drivers, and conducting field sobriety tests using one standard training course – the NHTSA approved FST student course, using the NHTSA manual.  That manual and course strictly follow the procedures for each field sobriety test, which matches, and are calibrated to, the validation studies that correlated certain behaviors and test performance with being above a .08% or a .10% alcohol level.

As it states in the NHTSA FST manual used to train all officers in the USA, if the tests are not given exactly as trained or instructed, the test results may be invalid.

Although police who are on DUI saturation patrols or make DUI arrests and conduct DUI testing are trained to follow the field sobriety tests, not all police officers do the test perfectly, under all conditions.  That can be used to show a judge, or a jury, that the test should be considered invalid because it was not utilized as it was designed to be given.

Most forensic alcohol experts can also testify as to the field sobriety tests, the standardized FST testing procedures, the history of the FSTs, the validation studies, and how they should be done correctly.

Using an expert witness in a DUI case can also help you prove that the DMV cannot meet their burden of proof. At the DMV, one of the issues that must be proven is whether or not the DMV has proven that the police had sufficient probable cause to conclude that a person was impaired, and to arrest.  That is usually shown through the FSTs, so pointing out via an expert how those tests were done incorrectly can help win the DMV hearing.

An expert witness for these issues can also be another DUI defense lawyer, as another DUI lawyer Orange County that specializes in DUI are certified in field sobriety testing at the student level, and have taken the instructor FST course, and have reviewed hundreds, sometimes thousands, of field sobriety tests.

Using a field sobriety test expert witness in a DUI drugs (DUID) case

Cases involving Driving Under the Influence of Drugs (DUID) usually involve a DRE – a “Drug Recognition Expert”.  This is a police officer that has gone through more extensive training to detect a wide variety of prescription and illegal substances, towards gathering evidence to support a charge of driving under the influence of any controlled substance or illegal substance.

That could be a case for driving under the influence of marijuana, driving under the influence of Ambien or other sleeping medication, driving under the influence of any illegal drug, or driving under the influence of any of a number of prescription drugs.

Using an expert witness in a DUI case involving drugs happens in every DUID case. The prosecution qualifies and uses a DRE police officer as an expert – their training, and experience with cases usually allow the court to recognize them as one.  Countering that with a drug recognition expert of our own, as the defense might help explain the behavior that the DRE uses as evidence of impairment through drugs.  In many cases, there are other explanations of particular behavior.  Sweating, a rapid pulse, or other behavior might be explained, at least in part, by the nervousness from being pulled over by the police.

Like field sobriety test experts, anyone with equivalent training to the police DRE expert in a DUI drugs (DUID) case can counter the evidence at trial, or at the DMV. Certain medical expert witnesses (see below) can also be helpful, or can be used, to testify as to the effects of stimulants, depressants, psychedelics, and the interactions between various types of drugs or medicines, as well as how long the drug might stay in the system, and at what levels a person might be impaired.

Using a mechanical expert witness in a DUI case at trial

In some cases, a mechanical expert might be appropriate.  In civil cases, including product defect cases and personal injury cases, mechanical experts are very common.  Mechanical expert witnesses are used to being hired by lawyers and providing expert testimony at depositions, or at trial.

Driving, especially poor driving behavior that was used by the police to justify a stop for suspicion and investigation of DUI, can sometimes be caused by problems with a vehicle’s brakes, suspension, tires, wheels, or alignment.  That can help with the issue of probable cause in a motion to suppress evidence and dismiss before trial, a not guilty on your DUI at trial, and can help to show that there was not sufficient probable cause to win your DMV hearing.

Using an expert witness in a DUI case can help explain not only probable cause but also breath testing issues.  When it comes to a false positive in a breathalyzer test for DUI cases, being involved in an accident that caused the vehicle’s airbag to deploy can often scatter airbag dust, which, through the Tyndall effect, can mimic alcohol in a breath machine.  That dust contains acetones, which can be on the skin, in the mouth, and inhaled in the lungs, and which show up as a false positive for alcohol in breath tests during a DUI arrest.

The airbag dust acetone dust only exists on certain model cars, however, so a mechanic familiar with vehicles and airbags, or any mechanical expert that can give an opinion on the subject, might be enough to create reasonable doubt at trial or at a motion to dismiss in court.

With the DMV hearing in a DUI case, it may also be used to show that the breath test results are invalid. It is an essential issue and part of the requirement under the DMV burden of proof that the DMV shows that a licensee was above a .08% at the time of driving.  An expert can show that the results measured were not truly alcohol, or that other factors contaminated the test to an extent that the alcohol test is not meaningful or useful in the case.  That can win a DMV hearing.

Using an accident reconstruction expert in a DUI case

An accident reconstruction expert is also a common expert witness for civil and personal injury depositions and trials.  Using an expert witness in a DUI case to describe how an accident occurred in detail can help the defense. This type of expert may be used to generally describe and explain how any accident in question occurred, based upon the evidence from the road, the vehicles, and witnesses. In a DUI with accident case, it can show that the accident was not the fault of the driver, in some cases.

The expert may also be able to estimate the speed of the vehicles at the time of impact, find out when the brakes were applied, deduce how fast each vehicle was going before and after impact, and other relevant details that refute or cast doubt on the claims made by the prosecutor.  If an accident was found to be someone else’s fault, that may help mitigate the damage in a DUI case in court, at trial, or at sentencing.

Using a medical expert witness in a DUI case

Using an expert witness in a DUI case for explaining medical issues, symptoms, and effects can help. The are many issues where a medical expert might be helpful in a DUI case.

In breath testing involved in a DUI case, known medical issues such as the creation of alcohol by the body, gastric bypass surgery, acid reflux disease or GERD, or mouth alcohol from dental work, might be a contaminant that can cause a falsely higher reading for alcohol.  Certain conditions, like diabetes, being on a ketogenic diet, or even having aspirin in your system, can falsely inflate the alcohol reading, above the true reading. The driver’s lung capacity, which might have been reduced from smoking, exposure to pollution, or surgery, can also be relevant to a breath test.

With a DUI blood test, a medical expert can testify as to bacteria in the vial, DUI blood testing issues, and defenses, chain of custody or refrigeration of the blood sample, and the correct way to collect or draw blood.  Using an expert witness in a DUI case can cross over to what can be the domain of other expert witnesses. For example, in a DUI case involving alcohol consumption, a phlebotomist is not supposed to use an alcohol swab on the arm before drawing blood, as that can contaminate the sample and prevent measurement of the true reading from the blood.  That is known by both the forensic alcohol community, and the medical community.

With field sobriety testing, a medical expert can testify as to balance issues caused by knee, back, ear/equilibrium, knee, or ankle problems, can testify as to neurological reasons why nystagmus or other symptoms might be present, and can testify as to lung capacity or physical problems that may be relevant

Using an expert witness in a DUI case for more complex medical issues doesn’t have to be expensive either.  A medical expert witness in a DUI case can be the driver’s treating physician, or any specialist with relevant knowledge, who can testify regarding the particular medical issue involved in the DUI case.

When using an expert witness in a DUI case, can the jury be told that you paid an expert witness to give his or her opinion?

Yes.  Using an expert witness in a DUI case can result in the jury being told that the expert was paid by the defense. Under Evidence Code 722 in California, it states:

722.  (a) The fact of the appointment of an expert witness by the court may be revealed to the trier of fact.
   (b) The compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony.

Of course, expert witnesses do not work for free, so it’s natural for a DMV hearing officer, a judge at a hearing, or at trial, or a jury to expect that an expert would be compensated for reviewing evidence and providing testimony as an expert.

Could an expert witness in your case be stopped from testifying?

According to Federal Rule of Evidence Rule 702: Testimony by Experts, under the Daubert standard, any testimony supplied has to be based on sufficient facts or data and must be produced and applied through reliable methods and sound principles by the expert. If it meets that criteria, it will then, as Rule 703 says, be regarded as evidence.

In California courts, Evidence code section 352 allows a judge to weigh how helpful the testimony is, against how prejudicial it might be to a fair trial.  The judge makes the final call as to whether or not the testimony comes in, or whether it’s limited as to what the expert can say.  Using an expert witness in a DUI case usually is allowed, as DUI cases rely on scientific evidence and testing, as well as more complex issues.

Although an expert witness may not be free or compulsory, they can be very useful, and helpful, in court, or at the DMV, and with proper use by the best DUI lawyer,  they can help win DUI cases.

Contact us for questions

Contact us

Contact our firm if you have any questions about the use of expert witnesses in a DUI case.  We have much experience in this area, and are happy to help you win your case in any way that we can.


Can you get a DUI for sleeping in your car?

Can you get a DUI for sleeping in your car?

Can you get a DUI for sleeping in your car?

If you know you’ve had too much to drink, sleeping in your car until you’re sober again is the right thing to do, right?  Believe it or not, you can get a DUI for sleeping “it off” in the car, and you could get a DUI in that situation – if the police find indications that you may have been driving drunk.

According to California law, a driver can be arrested for a DUI if they are found sleeping inside their vehicle while intoxicated. In fact, the legislature in California created a separate law that allows for an arrest for sleeping in a car (even if not running) to be authorized by law.  However, several factors are still considered as to whether an arrest will actually be made.

California Law Regarding Sleeping in Car While Intoxicated

The law – California Vehicle Code VC 40300.5

The California legislature enacted Vehicle Code section 40300.5 which doesn’t require that the officer observe driving.  In other words, the law allows for an arrest even if the violation did not occur in front of the officer.
Vehicle Code section 40300.5 provides that an officer is permitted to make a DUI arrest whenever they have probable cause to believe that the person has been driving while under the influence and the person:
  • may cause injury to himself or herself or damage property unless immediately arrested;
  • may destroy or conceal evidence of the crime unless immediately arrested;
  • was involved in a traffic accident of any type;
  • is in or about a vehicle that is obstructing a roadway; or
  • will not be apprehended unless immediately arrested.

Those exceptions above in California Vehicle Code VC 40300.5, favor law enforcement and make it easier for them to prove the driving issue. Given the statement in California Vehicle Code VC 40300.6 that “liberal interpretation of the no observation of driving rule” shall be part of the code, judges and hearing officers, after enactment of that code section have gone out of their way to not make decisions based on the police not observing driving in a DUI case.

As Orange County DUI Attorney Robert Miller has stated, “California case law previously stated that a driver could only be arrested and charged with a DUI if the car was actually moving. There was no chance of an arrest if someone was sleeping in his/her car while intoxicated and the car was not moving.”

The Jury Instructions – CalCrim 2241

In order to prove a case at trial, the jury has to find driving proven beyond a reasonable doubt.  The instruction used to give the jury the law is given below:

CALCRIM 2241. Driver and Driving Defined (Veh. Code, § 305):
[A driver is a person who drives or is in actual physical control of a vehicle.]
[A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight.]
As you can see it still must be proven that the vehicle was moved at some point in the past, even if the officer didn’t see driving.

DUI Caselaw – The Mercer v. DMV Case

Under the California DMV case of Mercer v. Department of Motor Vehicles,(1991) 53 Cal 3rd 753, the court said that you can get a DUI even if the car is not moving:
“We do not hold that observed movement of a vehicle is necessary to support a conviction of drunk driving under 23152.”
The court in Mercer holds that the law required proof of volitional movement of a car before someone can be convicted of a DUI.
However, like elsewhere in law, circumstantial evidence is sufficient to establish this element, and no one has to see driving.

Circumstantial Evidence and a DUI

Circumstantial evidence that may prove you were driving include:

  • An engine or hood that is still warm;
  • Tires that are still warm;
  • A car in any part of the roadway, including slightly over the shoulder line;
  • A vehicle damaged and next to the scene of an accident;
  • Your vehicle’s gear in drive; or 
  • Your keys in the car.

Your failure to explain the absence of any other drivers could also be used against you, or if you deny being the driver or if you fail to give a credible explanation of where the driver is or the driver’s identity.

In one Orange County DUI case we handled to trial, the driver was found in a vehicle asleep and was determined to be intoxicated.  At trial, we showed that his girlfriend had actually left the car to get gas when they had run out, and the jury found our client not guilty of DUI.

As a circumstantial evidence case, everything, from admissions to driving, to observations, (including feeling that the engine was still warm/hot to the touch), is a relevant issue.

Do the police have the right to investigate you if you are sleeping in your car?

Yes.  The law does require that police have to have probable cause to investigate and validly arrest for a DUI.  However, the law allows for police to conduct a “welfare check” to check on the safety of people in a vehicle asleep.  Probable cause to investigate further can be supported by the police if they suspect alcohol, as an individual can be charged with a drunk in public in violation of California Penal Code Section 647(f).
In many cities or counties, there are ordinances against sleeping in a car or at least overnight, which can support the actions of an officer to wake and question you.
There is a “blocking the roadway in any manner” exception in the law under California Vehicle Code VC 40300.6.  Once the police investigate to see if you need help, and smell alcohol, or observe anything that leads to a suspicion of impairment, they have enough probable cause justification to investigate further, and eventually conduct a “search” (the breath or blood test).
Attempted DUI: In California, you can also be arrested, or charged with, attempted DUI for trying to or exhibiting the specific intent to drive even if your car is still parked.
The attempt of any other crime is a separate crime, listed under Penal Code Section 21(a). An attempt is a “specific intent to commit a crime with a direct but ineffectual act towards committing it”.
Although it is theoretically possible to be charged with this, it is so rare and fact-specific as to be almost non-existent.
As Orange County DUI Lawyers, we always look very closely at the probable cause for any DUI stop.

Defenses to a DUI arrest for sleeping in the car

One DUI defense that may work in negotiating the DUI with the prosecutor, or at a  jury trial, is that the driver had a rising blood alcohol level defense – that is that they consumed alcohol before the police showed up and tested the breath or blood, and were not impaired or above a .08% at the actual time of driving.
The prosecution’s expert witness usually will point to the scientific literature that shows that absorption to a peak alcohol level takes place anywhere from 20 minutes to 90 minutes (mainly depending on whether you had food in your stomach), after which you start falling.
It makes it a much stronger case if a witness states that the driver purchased alcohol and that they saw you drink it.  Or if there was an admission that the driver had consumed alcohol after stopping the car, and there were the empty beer cans to prove it around the vehicle.  However, in most cases, the majority of facts are against the driver, even as a circumstantial case.
It’s easy to focus on the alcohol in sleeping in the car cases, but we also have to show that any narcotics or prescription drugs were not consumed while driving, if the case is a Driving Under the Influence of Drugs (DUID) case.
Since the law is written so that it’s illegal to drive with any prohibited substances in a driver’s bloodstream (even if legal), and if found to be driving under the influence of drugs, you are presumed to be driving under the influence (under the same/similar statute as alcohol).
That’s a rebuttable presumption, and as Orange County DUI Defense Attorneys, we can present expert testimony that a driver was not impaired.
For most drivers, that leaves them with two remaining options if they cannot challenge the stop in the first place:
  • Challenging the blood or breath testing; or
  • Impressing upon the DA any mitigation evidence – that is, any special licenses and other accomplishments, character reference letters, rehabilitation, charity work, or school work, and trying to negotiate something lower just based upon that.
With the right jury and expert testimony that is clear, a driver would have a stronger case.  Or with the right jury and the right expert testimony, and the help of an Orange County DUI Lawyer, the jury might end up hung, or could provide you with a not guilty verdict.
Being in a parked vehicle may or may not be grounds for law enforcement to investigate you for DUI or any other alleged offense. As with many stops and detentions by police, it depends on the facts and circumstances of each case.

Can you get a DUI for sleeping in your car if you’re in the back seat, or if your keys are in the trunk or back seat?

Considering all the facts of the case, it’s better to be in the back seat, and it’s better to have the keys somewhere away from you. If you have the engine off, that makes the case more difficult to prove for the officers to prove you were driving at some point.
If you get in the back seat and the police officer can’t find the keys to the car, how do they know that you were driving or someone else wasn’t driving and left it? There are a number of possibilities, as long as you have invoked your right to remain silent and do not confess or admit to anything the police have to prove. It’s best for the keys to be nowhere and for you not to be in the driver’s seat, but even that doesn’t always prevent you from being arrested for DUI.

So can you get a DUI for sleeping in your car?

Yes.  Since California law makes that easier for officers to arrest for, your best move is to take a cab or a ride-sharing service like Uber, or Lyft home if you are too drunk to drive. Or, have a designated, non-drinking driver take you home.

Contact Us if you were arrested for DUI.

Contact Our Firm
Contact us today. If you have been charged with a DUI, contact our Orange County DUI Attorneys for representation. We provide legal advice and representation to people with cases in Orange County who have been charged with DUI. We can help try to get the charge asserted against you reduced or completely dismissed.

Must I install a breathalyzer (IID) in my car?

Must I install a breathalyzer (IID) in my car?

Ignition Interlock Device IID

Must I install a breathalyzer (IID) in my car in my DUI case? An ignition interlock device needs to be installed in your case under California law in certain cases. Learn from our Orange County DUI Lawyers when you will need to have a breathalyzer installed in your vehicle for the DMV or for the court.

What is an ignition interlock device (IID)?

An ignition interlock device, which is sometimes called a breath alcohol ignition interlock device (IID and BAIID) is a breathalyzer for your vehicle. It requires the driver to blow into a mouthpiece on the device before starting the vehicle. With some devices, you are also periodically required to blow in the vehicle while it is in motion at certain intervals.

When do I need an IID installed?

Must I install a breathalyzer (IID) in my car as part of my DUI case? There are only two situations where the IID needs to be installed in your car:

  1. You have a first time DUI in one of the four specific “DUI Pilot Program” counties in California; or
  2. You have a multiple offense DUI (a second DUI or higher).

Ignition Interlock IID Requirements for a “DUI Pilot Program” county.

The four “DUI pilot program” counties in California are as follows:

  1. Los Angeles County;
  2. Alameda County;
  3. Sacramento County; and
  4. Tulare County.

In those four counties only, a pilot experiment is going on over a period of several years.  That experiment is to see, statistically, if installing a breathalyzer (IID) in the cars of first time offenders, ends up reducing the number of second time driving under the influence (DUI) cases and provide DMV with data that can be used to evaluate the effectiveness of an IID in reducing DUIs overall.

That IID pilot program requires all individuals convicted of a DUI in one of the four California counties above to install an IID on every vehicle they own or drive, provide DMV with a Department of Motor Vehicles Ordered Verification of Ignition Interlock (DL 924) form, pay a $45 administrative service fee (ASF), and meet all other reinstatement requirements before DMV can reinstate, reissue, or restrict their drivers license.

The DMV, not the Court, Requires the IID.

Note that this is not a court requirement, even though it is triggered on being found guilty of DUI, or entering a plea of guilty to DUI under a plea bargain in court.  The court may not mention it, as it is a DMV requirement, and after a conviction, the DMV will notify you via mail of the need to install a breathalyzer (IID) in your car.

After a court conviction, the DMV automatically mails an Order of Suspension or Revocation notice along with a DUI IID Insert or an Order of Installment of an Ignition Interlock Device when the department receives notification of a conviction for a DUI violation under California Vehicle Code (CVC) §§23152 or 23153 or Penal Code (PC) §191.5(b) which occurred in one of the pilot counties on or after July 1, 2010. Note that pleading to a wet reckless does not require you to have an IID installed in your vehicle.

How long do I have to have the IID installed for?

If you are a standard first-time DUI offender in one of the counties above, you must install the ignition interlock device for five (5) months. If, however you are convicted of Vehicle Code 23153 VC DUI causing injury, you must install the device for one year.

Once an IID is installed, do I have to do anything further?

Yes – you must arrange service with the installer for each of the vehicles with an IID at least once every 60 days. When the vehicle is serviced, the installer will recalibrate and monitors the operation of the device. Under CVC §23700, an IID installer must notify DMV if the device is removed or if there is evidence that you attempted to remove, bypass, or tamper with the device; or if you fail three or more times to comply with any requirements for the maintenance or calibration of the IID.

An IID and a Second time DUI or a Third time DUI

Must I install a breathalyzer (IID) in my car for a second time DUI?

With a second time DUI, you are not required to install an IID, but it helps you.

While the DMV APS suspension is 1 year if there is 1 prior DUI on the record within 10 years, if you submitted to a chemical test and show proof of installation of the ignition interlock device(“IID”), you can obtain a restricted license after 90 days. This restricted license allows you to drive anywhere as long as it’s in a car with an IID installed. This is required for 12 months.

Unfortunately, drivers facing a second time DUI offense in California who also refused to submit to a chemical test will face a much tougher punishment. These individuals face a two year license revocation and are not entitled to a restricted license during any part of the suspension period.

You should note that there is no way around the 12-month ignition interlock device (IID) requirement. Therefore we always recommend to our clients that you should install it immediately so that you can get the restricted license on the 91st day after your suspension initially began.

Must I install a breathalyzer (IID) in my car for a Third Time DUI?

Do I need to install a car breathalyzer (IID) in my DUI case as a third time offender? If you are convicted of a third offense DUI, you must install an IID on any car you own or operate for a four-year period. If you are convicted of your 3rd DUI in the pilot program counties of Los Angeles, Alameda, Tulare or Sacramento County, IID installation is mandatory. However, in all other counties, installation is at the judge’s discretion.

A court license suspension from a DUI is 3 years when there are already 2 prior DUI or wet reckless convictions within 10 years.

On the other hand, the DMV’s APS suspension of your license is only 1 year if there is 2 prior DUIs on the record within 10 years. However, after 180 days, if you submitted to a chemical test and show proof of installation of an ignition interlock device (“IID”), you can obtain a restricted license. This restricted license allows you to drive anywhere as long as it’s in a car with an IID installed. This is required for 24 months.

Unfortunately, drivers facing a third time DUI offense in California who also refused to submit to a chemical test will face a much tougher punishment. These individuals face a three year license revocation and are not entitled to a restricted license during any part of the suspension period.

You should note that there is no way around the 24-month IID requirement, so we always recommend to our clients that you should install it immediately so that you can get the restricted license on the 181st day after your suspension initially began.

Must I install a breathalyzer (IID) in my car?  It depends on the above factors.

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Do you have question about your specific case, or about IID requirements, for our DUI Lawyers?  Contact us today. 


Can you get a DUI in an electric car?

Can you get a DUI in an electric car?

Can you get a DUI in a tesla

Can you get a DUI in an electric car? As a DUI Lawyer in Orange County, which has a fair amount of Teslas,  have been asked a few times in the past whether or not you can get a DUI in a Tesla.  Presumably the same question would apply to any other type of pure electric car.

The reasoning here in the question is that, since an electric car, like a Tesla, does not have a gas motor, is it really considered a car, for legal purposes involved with a DUI?

The law does have definitions, and limits on what it applies to.  While there have been cases in other jurisdictions where someone has been arrested for all of the following:

California law does make some distinctions. For example, in one Orange County DUI case that our Orange County DUI Defense firm handled, and which we ended up winning a dismissal on DUI charges for, our client was charged with a DUI on a scooter. 

In California, the law only allows the charges for DUI to remain if the motor was above a specific horsepower.  Under California Vehicle Code VC §406(b), a scooter or bicycle must:

  • Have pedals and an electric motor that produces no more than 1,000 watts.
  • Be unable to propel itself more than 20 mph on level ground, including with assisted pedaling.

A motorized bicycle or moped classified under these requirements do not need a license plate, registration fee or insurance. They are not considered a “motorized vehicle”, and you cannot get a DUI if they meet the above requirements, or are under those requirements above. However, it’s important to note that you still must be 16 years old and wear a properly fitted bicycle helmet whenever you are riding.

For a motorized bicycle or moped to be classified as type CVC §406(b),

Can you get a DUI in an electric car?  Yes you can. In California, a DUI is defined as operating a motor vehicle on a public roadway while under the influence or while above a .08 blood alcohol level.

A car with an electric motor is still a “motorized vehicle”. As long as there was driving of any motorized vehicle, and the person driving was above a .08%, or was impaired and unable to operate that vehicle safely, a DUI can be proven.

California Vehicle code VC 415 defines what a motor vehicle is and says:

(a) A “motor vehicle” is a vehicle that is self-propelled.

However, there is an exception for the following motorized vehicles:

(b) “Motor vehicle” does not include a self-propelled wheelchair, motorized tricycle, or motorized quadricycle, if operated by a person who, by reason of physical disability, is otherwise unable to move about as a pedestrian.

Can you get a DUI in an self driving car?

Interestingly enough, the question becomes more complicated if the Tesla (or any other self driving vehicle) is doing the driving, and not the person with the driver’s license.

Unfortunately, under current California law, even if your self driving, self parking car is parking the car while you are not in the vehicle, you are still considered the person in charge (the “pilot in command”), and are still responsible for the car’s safe operation even when the car is operating out of your sight.

What that means is that if your car is driving itself and is parking while you are having a beer or other alcoholic beverage in a bar, and it gets in a collision with another vehicle, you are responsible for the safe operation and driving of that vehicle, and you could not only be held responsible for the accident, but could also be charged with driving under the influence (if you are above a .08% or are under the influence), even though you were not in the car at all. 

That law has been the subject of discussions regarding legislative change in the future, but for now, it remains the current law. So can you get a DUI in an electric car?  Under the current law, yes.

Contact us if you have questions for our Orange County DUI Lawyers regarding DUI and self driving vehicles, or electric cars, or if you need our services.


Brea Treasurer arrested for DUI right before his election

Brea Treasurer arrested for DUI right before his election

Brea treasurer arrested for DUI

A case was filed in Orange County Superior Court in Fullerton, alleging that Brea Treasurer Rick J. Rios was driving under the influence, and committed a hit and run in Orange County.

According to one source, on Friday, October 15th, 2016, (three weeks before his election), at around 11:45 p.m., the Brea police received a call that a white SUV had collided with parked cars in a non-injury accident and then left the area.  The treasurer, Rios was arrested when he his SUV returned to the area.  Police detected signs of alcohol intoxication, gave him a field sobriety test, and arrested him for both hit-and-run and driving while intoxicated.

The complaint filed by the prosecutor in the case alleges that he was a .09% blood alcohol level, as measured by a DUI breath test.

The case is pending in the North Justice Center in Fullerton as of this writing.  One of the best DUI lawyers in Orange County, Felipe Plascencia, is representing Mr. Rios.  Mr. Rios has entered a not guilty plea at his arraignment while the case is pending and is assumed innocent until proven guilty of his DUI in Orange County, and his Hit and Run charges.

The prosecutor in the case, The District Attorney of Orange County, waited almost two months after this occurred, and one month after the election occurred, to file charges on December 7th, 2016.

A source investigating this incident found out that the two cars hit belong to the same family, a parent and son.  In DUI cases, if there is a finding of guilty, or a guilty plea, the court typically orders restitution, or holds a restitution hearing, if there was damage to any party.  In most cases, insurance pays for damages, but the restitution order allows a victim to come to court to seek damages and reimbursement if there is not insurance coverage. For this Brea Treasurer arrested for DUI right before his election, he may be eventually ordered to pay for any repairs, or any damages.


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If you have questions about a DUI case in Orange County, or a hit and run case in orange county, please contact us today. We can help you with your case and minimize the impact on you from sentencing with the priors.

California DUIs and out of state alcohol classes

California DUIs and out of state alcohol classes

California DUIs and out of state alcohol classes

California DUIs and out of state alcohol classes create a special problem. If you were convicted of a DUI in California, Vehicle Code §23556 requires the court to order the completion of a California alcohol program in the driver’s county of residence or employment.

However, if you move out of state, you have a problem with both the court and the DMV. This article discusses what happens when a California resident, who holds a California driver’s license, and gets a California DUI, moves out of state before completing the required alcohol school.  It is different from the situation where someone from California gets a DUI in another state.  In short, the court will allow an alcohol school in another state, but the DMV will require a California school or alcohol program, or for you to give up your CA driver’s license.

Court DUI Sentences and DUI schools out of county or state:

With the court, the court must specifically authorize, and order as part of your case, an out of county, or out of state, alcohol school.  In general, the court will allow any program that is the equivalent of a first time offender’s program in whatever state you are in, if you have a first-time offense, and a second time offender’s alcohol program if you have a second time DUI case, and so on.  That may mean that you attend a class that is substantially cheaper and less time than California, or more expensive and a longer program than California’s.

The DMV and DUI schools out of county or state:

With the DMV, you have a more difficult problem. So long as you live in California, the California DMV will never accept completion of an alcohol class from another state. The class must be taken in California even if the court accepted an out-of-state program in satisfaction of probation.

You have two options:

  1. Remain in California and complete the alcohol classes, or
  2. Move to another state and waive your “privilege” to drive in California.

Vehicle Code §23558(c)(1) allows the court to revoke probation for failure to complete the program except for good cause. Vehicle Code §13352(a)(2) refers to this Vehicle Code §23538 program, i.e. one in the person’s county of residence or employment, and requires that it be completed before full driving privileges can be returned. Punishment statutes for other drunk driving offenses have similar provisions. Obviously, none of this is possible if the person resides in another state since there are no California licensed drinking driver programs outside the state of California.

Where you must attend DUI schools in California:

Because of that, Health & Safety Code §11837.2(a) indicates that the court may refer persons only to licensed programs. Subject to these provisions, a person is eligible to participate in the program if it is operating in any of the following:

  1. The county where the person is convicted, or
  2. The county where the person resides, or
  3. A county that has an agreement with such person’s county of residence pursuant to Section 11838, or
  4. A county to which the person may request transfer pursuant to subdivision (d).

What do you do if you have a California Driver’s License but live out of state?

The law does not require impossibilities (Civil Code §3531). If a person resides in another state if they cannot attend a licensed California drinking driver program unless they interrupt their lives and move back to California. But with California DUIs and out of state alcohol classes, that rarely happens.

If you have a California DUI and you live out of state now, you may find that your license is suspended by the California DMV and will continue to be suspended until you complete a California alcohol school.

However, that suspension of your driver’s license may prevent you from getting a new driver’s license in another state, as other states that are part of the interstate driver’s compact will obtain the records from the California DMV, and will not issue you a new license in your new state until California lifts the hold.

That creates a driver’s license “Catch-22”.  The solution is to apply to the DMV for an out of state waiver.

Applying for a CA DMV License Waiver

You must take action yourself on this.  Your California DUI attorney, unfortunately, cannot do this for you. If you move out-of-state, you can call DMV Mandatory Actions Unit in Sacramento, California, at (916) 657-6525 and ask for a “1650 waiver packet.”  They will only mail this packet to you, the licensee, at an out-of-state address (you will also have to prove you live out-of-state with a utility bill or such).  This waiver allows out-of-state licensees to obtain a license in another state, by lifting driver’s license holds, and also allows you to drive in California, but does not allow the out-of-state licensee to acquire a California license within 3 years of filing the waiver.

One can only qualify for the 1650 waiver once in a lifetime – a rule that begun in March of 2005.  The 1650 Waiver removes the California hold, assuming an SR22 is also on file with DMV. If you come back to California within 3-years and want your license back, you will have to take the applicable approved California Alcohol school program, or classes. California DUIs and out of state alcohol classes does not work for the DMV lifting the hold.

Contact our DUI defense firm if you need our experience.

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Can a DUI affect your immigration status?

Can a DUI affect your immigration status?

Can a DUI cause immigration problems?

A common question for persons that are in the United States on a Student Visa, a Work Visa of any kind, or a Family or other visa, is whether or not a DUI will affect immigration status.

If you have qualified for any type of visa to enter the United States of America, then you have already been checked by the USCIS to qualify you for the visa.  That required that you submit information to be checked against the FBI Department of Justice criminal records reports.

For some types of visas, you also have a requirement to resubmit fingerprints and data and disclose any convictions during renewals.  It is understandable that someone that is arrested, or convicted, for a DUI here in California would be concerned about the status of their visa or petition.

What types of crimes cause immigration problems?

The Immigration and Naturalization Act is part of the United States Code.  That sets what categories of crimes could affect immigration status, by making certain crimes a problem.  The law states that for crimes that are prohibited, you can be:

  • Excluded from admission into the United States of America;
  • Ineligible to obtain visas issued by the USCIS; or
  • Offenses that are deportable, which will cause you to be kicked out of the country.

As broad categories, the Federal INA makes convictions of the following types of crimes a problem:

  1. Crimes of moral turpitude;
  2. Crimes of violence;
  3. Crimes involving terrorism;
  4. Crimes involving transportation, sales, or creation of narcotics; or
  5. Crimes involving firearms.

Note that a crime of moral turpitude is defined as one that gravely violates the normal standards of the community.  Theft or embezzlement crimes are usually crimes of moral turpitude.

You will note that drinking and driving is not listed here.  Drinking and driving doesn’t generally fit any of the categories of crimes that pose an immigration problem.

However, the facts of a DUI case are important.  There are certain enhancements that can make a DUI more serious, that may be a problem, or other crimes that can occur along with a DUI that might match one of the above.

Can a DUI affect your immigration status by being a problem offense?

Under a separate, rarely invoked section of the Immigration Act, someone can be excluded from admission for having a medical condition, and alcoholism is considered in caselaw as a medical condition.  While that is so rare as to be unlikely, for persons that have multiple DUIs, the USCIS could make an argument that a person with a second time DUI, a third time DUI, or a felony fourth DUI or more suffers from alcoholism as a medical condition.  That could make that person excludable from entering the USA.

Can a DUI affect your immigration status?

The answer, like much of law, is shrouded in shades of grey, and is highly dependent upon the facts.  But in general, a DUI is not the type of crime that can affect any type of immigration visa (subject to the disclaimers and caveats for special situations above).

Contact Us. If you have questions about immigration and a DUI, please contact us anytime.  We are happy to help.




It’s important to abide by DUI bail conditions

Why it’s important to abide by DUI bail conditions

With Orange County DUI cases, it’s important to abide by your bail conditions, exactly as imposed by the court at your bail hearing, or arraignment hearing.

An arraignment is the first court date in your case, and if your DUI case was in Orange County, and if the facts involved in your DUI were especially bad, or if you have a prior DUI, then at the arraignment the judge will set bail conditions.  In OC Courts, the judges usually also set bail conditions for a second time DUI, a third time DUI, or a fourth time DUI or higher.

What are the usual DUI bail conditions in Orange County DUI cases?

Judges in Orange County usually impose the following specific conditions:

  • Consume no alcohol while the case is pending;
  • Do not drive without a valid license and insurance;
  • Consume no marijuana while the case is pending;
  • Consume no illegal drugs while the case is pending; and
  • Attend two or more self help meetings per week (this could be AA meetings, NA meetings, individual therapy sessions, or sessions such as Rational Recovery or online services like Lifeline).

Other possible DUI bail conditions could be any or all of the following:

  • Not to drive at all, under any circumstance;
  • Not to be in any place where alcohol is the chief item for sale;
  • Mandatory drug or alcohol testing through probation;
  • Wear a “SCRAM” or GPS device;
  • Installation of an ignition interlock device in any vehicle owned or operated by the defendant in the DUI case. 

Those conditions are more rare, and only certain judges impose them.  They are highly fact sensitive to the case.  For example, if there was evidence that an individual was driving on a suspended or revoked license repeatedly, or was continuing to use or consume alcohol or drugs, they may be appropriate.

Why it’s important to abide by DUI bail conditions

The reason why it’s important to abide by the bail conditions set by the court is that bail can be revoked entirely if you fail to comply with any conditions agreed to and set by the court.  That means you go straight to jail, do not pass GO, and you cannot be released on bail for any amount again until the case is over.

Contact us today for help with your Orange County DUI case.  We are experienced and can help you.

DUI Under the Influence of Tea

DUI Under the Influence of Tea

DUI Under the Influence of Tea

There was a recent case here in California, where a driver was arrested for driving under the influence of caffeine.  There are also many cases where Coca Tea, which can test positive for cocaine, can cause you go be arrested for a Drug DUI.  But in California, caselaw determines that there is another hot beverage which can make you test “under the influence” while driving – Kava Kava.

Kava Kava is a drink that is popular in the Islands of the South Pacific – including in Polynesian and Hawaiian culture, and in many Pacific Island native cultures.  It is made from the root of the Kava plant, which is a type of pepper plant.  It is sold over the counter online and in many pharmacies as a powdered capsule, or as a tea, for relaxation.

The Olive Case – DUI Under the Influence of Tea

Almost two decades ago, a fight between Kava and California’s DUI Laws took place, causing the appeals court to decide the issue.  A man named Sione Olive was driving on Highway 101 to visit his aunt in Palo Alto.  He was driving directly from his church, Shoreline Church in San Mateo, where he had been given kava tea during a religious function. It’s common for Kava Kava to be part of Polynesian rituals.

The prosecutors in San Mateo County said that his driving and performance for officer’s field sobriety tests showed that he was under the influence, due to the tea.  Testing showed that he had no alcohol in his system.  CHP Officer Dave Newton, however, “had the opinion that he was under the influence of alcohol or drugs,” he said, “based on his driving, his watery eyes, his sluggish movements and his failure of field sobriety tests.” He was given a breathalyzer, and a urine test, which tested negative for alcohol, but positive for Kava tea.

The case went to trial, and the jury deadlocked.  They were unable to agree on a finding of guilt, and the case was declared a mistrial.  The prosecutors decided to retry the case.

In December, 2000, the case was tried again, and Olive was found guilty.  However, citing “a lack of evidence” from prosecutors to demonstrate that the herbal brew indeed caused Olive to drive erratically that morning, Judge Marta Diaz found that he had been wrongfully charged under a statute of the state vehicle code regarding driving under the influence of drugs.

“I cannot find that its application to this defendant is appropriate,” she said, granting a motion by defense attorney Hugo Borja to dismiss the case. After suggesting that Olive may not have understood the sobriety tests due to his limited English, the DUI Defense Lawyer Borja, had argued that his client did not consider himself impaired from drinking kava. In the absence of concrete legal wording on the subject, he added, the highway patrol should not be allowed to arrest motorists for driving under the influence of a substance that has not been adequately defined.

That year, the 26 year old Olive’s arrest for Kava tea was only the second of its kind ever in California. In October of the same year (2000), jurors had deadlocked on whether to acquit 47-year-old Taufui Piutau of San Bruno, who was also arrested for weaving on U.S. 101 after drinking kava.

The Definition of Substances that Make You Under the Influence

The state vehicle code defines a drug as “any substance or combination of substances … which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent or cautious man … would drive a similar vehicle under like conditions.”

Judge Marta Diaz, who had heard the second trial, apparently disagreed – saying in effect it was not up to officers and prosecutors to determine what substances impair a driver’s abilities.  “The real issue here is not the stop,” she said, noting the officer did the correct thing to pull over the weaving vehicle.

Instead, she asked, “Is the application of the statute to this substance patently unfair? Would we be sitting here if the defendant said he had 23 cups of hot milk?”

The following year, on July 24, 2001, the appellate division of the Superior Court of San Mateo delivered the decision that appears below.  It remanded the case back to court for a third time, and indicated that the laws did not have to name specific drugs, or even name Kava tea, but rather was sufficient to prosecute, as the law prohibiting drugs “conveys legally sufficient warning about the prohibited conduct” enough to have a jury determine whether or not the kava tea made it unsafe for the defendant to drive.

The DUI Under the Influence of Kava Tea Case: People v. Olive (2001)

Appellate Division, Superior Court, San Mateo

[No. AD-4645.

July 24, 2001.]

THE PEOPLE, Plaintiff and Appellant, v. SIONE OLIVE, Defendant and Respondent.

(Superior Court of San Mateo County, No. SM306891, Marta S. Diaz, Judge.)

(Opinion by Kopp, J., with Holm, P. J. and Pfeiffer, J., concurring.)


Hugo Borja, for Plaintiff and Appellant.

Rachel Holt, for Defendant and Respondent. [92 Cal. App. 4th Supp. 23]



This appeal involves a legal issue of first impression and continuing public interest in California.

Respondent, driving erratically at a slow speed southbound on U.S. Highway 101 at 1:20 a.m. on June 17, 2000, was stopped by California Highway Patrol officers. Requested to walk to the officers’ vehicle, respondent displayed difficulty in maintaining his balance. His movements were deliberate, slow and sluggish; his eyes were red and watery. He denied drinking any alcohol but stated he had consumed approximately 23 cups of kava. Asked if he felt any effect from the kava, respondent replied that he felt “slow and heavy.” Immediately thereafter, physical sobriety tests were administered to the respondent. His performance was flawed. A preliminary alcohol screening test showed 0.00% alcohol in his blood. One of the officers then arrested respondent after forming the opinion that respondent was under the influence of alcohol or a drug and his ability to operate a motor vehicle safely was impaired.

Appellant commenced criminal action against respondent on June 19, 2000, accusing him of violating Vehicle Code section 23152, subdivision (a). fn. 1 Respondent moved to dismiss the charge, claiming unconstitutionality of section 23152, subdivision (a) as applied to him in the circumstances of the case. He alleged the statute was “overly broad and vague” and its [92 Cal. App. 4th Supp. 24] application on the facts of the case denied him “due process of law.” Respondent further contended section 23152, subdivision (a) provides no notice that driving under the influence of kava is a crime and that neither by statute nor case law is kava deemed a drug under section 23152, subdivision (a).

Respondent also moved pursuant to Penal Code section 1538.5 to suppress evidence from a post arrest urine test. Respondent’s motion to suppress evidence was considered first by the trial court at a hearing in which the arresting officer testified for appellant and was cross-examined by respondent. The respondent neither produced any evidence nor exercised responsibility for sustaining the burden of his motion to dismiss the case. In fact, appellant’s evidentiary presentation anent the motion to suppress evidence and the testimonial hearing thereon were subsumed by the court’s consideration of the motion to dismiss for unconstitutionality. The trial court denied the motion to suppress evidence and, after considering legal argument in which the court requested appellant to proceed first, ordered dismissal of the case, declaring it was doing so: “in this case, under these circumstances, based on the evidence in this particular record.”

[1a] Appellant appeals, claiming dismissal occurred pursuant to Penal Code section 1385 “in furtherance of justice” and that the trial court abused its discretion thereunder. We reverse, not because Penal Code section 1385’s discretionary power was abused (Penal Code section 1385 was not the basis of dismissal), but because (1) respondent, not appellant, bears the burden in his due process attack of showing Vehicle Code section 23152, subdivision (a)’s unconstitutionality as applied and failed utterly to do so, and (2) such showing as was adduced in the motion to suppress hearing persuades us the statute is constitutional as applied to respondent. As noted in People v. Archerd (1970) 3 Cal. 3d 615, 639, in which the defendant raised pre-indictment delay as a violation of his due process right to a speedy trial, an accused must demonstrate “prejudice or improper motive by the prosecution . . . [and thereafter] the burden shifts to the people to show that the pre-indictment delay was the result of a valid police purpose.” Similarly, respondent, not appellant, was first obliged procedurally to establish, by experts or other evidentiary sources, unconstitutional application, after which appellant could respond.

Since no facts were advanced by respondent concerning unconstitutional application of section 23152, subdivision (a) to him, he rests his unconstitutionality argument upon the lack of any judicial decision and omission of a literal statutory statement that kava constitutes a “drug” within the meaning of section 23152, subdivision (a). We could remand to the trial court for [92 Cal. App. 4th Supp. 25] failure to compel respondent’s execution of his burden to show unconstitutionality of section 23152, subdivision (a) as applied. [2] We do not do so because interpretation of a statute and the determination of its constitutionality are questions of law, absent any factual showing by an accused. As an appellate court, we apply a de novo standard of review. (People v. Health Laboratories of North America, Inc. (2001) 87 Cal. App. 4th 442, 445.)

[3] All presumptions favor the validity of a statute, and statutes “must be upheld unless their unconstitutionality clearly, positively and unmistakably appears.” (Smith v. Peterson (1955) 131 Cal. App. 2d 241, 246.) A criminal statute satisfies due process so long as it is “definite enough to provide a standard of conduct for those whose activities are proscribed [citations]” and “provide[s] definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. [Citations.]” (People v. Heitzman (1994) 9 Cal. 4th 189, 199-200.) A statute must give fair warning and sufficiently inform ordinary people with average intelligence of the acts it declares prohibited and punishable. (Burg v. Municipal Court (1983) 35 Cal. 3d 257, 270-272.) The defendant in Burg challenged the then existing 0.10 percent blood-alcohol standard for conviction of a section 23152, subdivision (b) violation with a vagueness theory that it was impossible “for a person to determine by means of his senses whether his blood-alcohol level is a ‘legal’ 0.09 percent or an ‘illegal’ 0.10 percent.” (Burg, at p. 270) The court rejected defendant’s curious theory and commented that consumption of a quantity of alcohol “should notify a person of ordinary intelligence he is in jeopardy of violating the statute.” (Id. at p. 271)

[1b] Respondent herein contends that without inclusion of kava, in haec verba, section 23152, subdivision (a) is void for vagueness. Actual notice of each drug constituting a basis for prosecution under section 23152, subdivision (a) is not required if a person is reasonably made aware of the proscribed conduct, namely, impaired driving ability resulting from ingestion of some substance. “It is not required that a statute, to be valid, have that degree of exactness which inheres in a mathematical theorem. It is not necessary that a statute furnish detailed plans and specifications of the acts or conduct prohibited.” (Smith v. Peterson, supra, “131 Cal.App.2d at p. 246.)

In People v. Buese (1963) 220 Cal. App. 2d 802, 806-807, the court held not void for vagueness a statute barring transportation of “drugs” into a county jail. The drug in issue was a hypnotic. The court observed: “‘Drugs’ is the general word used in association with ‘narcotics’ and ‘alcoholic beverages.’ These terms have a number of things in common, [92 Cal. App. 4th Supp. 26] included among which is the fact that they are taken internally and when so taken they affect the brain, and particularly that function of the brain controlling judgment. By use of the word ‘drugs’ it is reasonable to assume the Legislature intended to include those drugs having similar characteristics. So interpreted hypnotic drugs are clearly within a much larger group possessing such similarity.” (Id. at p. 807).

As used in section 23152, “drug” is defined by section 312 which declares: “The term ‘drug’ means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.”

Omission of kava by its name does not render section 23152, subdivision (a) unconstitutionally vague as applied. (People v. Avila (2000) 80 Cal. App. 4th 791, 802-803; People v. Keith (1960) 184 Cal. App. 2d Supp. 884.) In Avila, a Penal Code section 286, subdivision (i) action, the Court of Appeals iterated: “A statute provides adequate notice when its ‘language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.'” (People v. Avila, supra, 80 Cal.App.4th at pp. 802-803, italics added.) No actual substance was (or is) identified in Penal Code section 286, subdivision (i). There, the court held the purpose of the allegedly vague language in that statute was “to define the crime in terms that clearly warn against the commission of sodomy on a victim whose ability to resist, . . . is prevented by substances having anesthetic or intoxicating effects . . . .” (Avila, at p. 798.)

Section 23152, subdivision (a) provides that vehicle operation while under the influence of a substance other than alcohol which could “affect the nervous system, brain, or muscles” (Veh. Code, § 312) in such a way as to impair a person’s ability to drive as an ordinarily prudent and cautious man using reasonable care would drive a vehicle under like conditions is a crime. It describes conduct; it does not purport to identify particular drugs, and it is not required constitutionally in this case to do so. (Testimony offered by appellant at the hearing on the motion to suppress evidence demonstrates respondent was himself aware of kava’s effects the very night of his arrest; he felt “slow and heavy”. fn. 2

Because respondent failed to sustain the burden of proof created by his due process motion to dismiss for unconstitutionality as applied and because [92 Cal. App. 4th Supp. 27] section 23152, subdivision (a) in conjunction with section 312 conveys legally sufficient warning about the prohibited conduct, the judgment dismissing the criminal action against respondent is reversed. The case is remanded for trial.

Holm, P. J. and Pfeiffer, J. concurred.

FN 1. All statutory references are to the Vehicle Code unless otherwise stated.

FN 2. The effects upon his motoring ability were plainly observed by the arresting officer, who also observed respondent’s flawed performance on physical sobriety tests.

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