What does the prosecution need to prove to get a DUI conviction?
When you are arrested for driving under the influence, it's common for the prosecution to file two different DUI charges against you: one based on the amount of drugs or alcohol in your body (a "per se" DUI) and a second based on your level of impairment. The idea behind filing two charges isn't to convict or punish a motorist for both. Per se and impairment DUIs require different types of proof. So, prosecutors often file both charges in DUI cases with the hope that one or the other will stick. And even if a driver is convicted of the two separate charges, usually the court can only punish the driver for one of the convictions. Consulting a DUI attorney in Orange County is a good idea when figuring out how to respond to the charges.
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The main difference between a per se and an impairment DUI is how the prosecution proves you were "under the influence." Here's how it works. With a per se DUI, the prosecutor just needs to show the person was driving with a certain amount of drugs or alcohol in the body—proof that the driver was actually impaired or affected by the substance ingested isn't necessary. To prove an impairment DUI, on the other hand, a prosecutor must show the driver was actually drunk or stoned. The level of impairment that the prosecution must prove varies by state.
In order to prove that a defendant is guilty of driving under the influence, the prosecution must be able to prove that the defendant drove a vehicle and that he or she was under the influence of drugs or alcohol at the time of driving or had a BAC of 0.08 percent or higher at the time of driving.
In many cases, the arresting officer will personally observe the defendant driving a vehicle. However, in some cases the officer may not actually see the defendant drive a vehicle and the prosecution must be able to prove driving by some other means. This is often the case in DUI collisions where the officer was not present when the collision occurred. The prosecution may rely on witness statements to prove that the defendant was driving or the defendant’s own admission that he or she was driving the vehicle.
In some cases, there may be no witnesses or admissions. In these cases, the prosecution may try to prove that a defendant was driving by using circumstantial evidence. This can include the position of alleged driver in the vehicle, the lack of other possible drivers or other factors that tend to show the defendant was the driver.
It is important to remember that in California, the prosecution must show more than mere physical control of a vehicle. Courts have found that driving requires volitional movement of a vehicle. This means that defendants who were sleeping or sitting in a vehicle and not actually driving would have a strong defense if charged with DUI.
The prosecution must be able to prove that the defendant was under the influence of alcohol at the time of driving or had a BAC of 0.08 percent or higher at the time of driving if charged with California Vehicle Code Section 23152(b) VC. To do this, the prosecution will rely on the results of the breath or blood test taken after the time of driving. Drivers must be observed prior to testing at all times to ensure they do not consume alcohol or do anything else that may lead to higher BAC results.
The prosecution may have to provide expert testimony regarding retrograde extrapolation to explain how the results of a test taken after the time of driving can accurately show the defendant’s BAC when driving occurred. The defense can also present expert witnesses who may be able to show why the defendant’s BAC at the time of driving was under 0.08 percent and subsequent test results reflected a rising blood alcohol level.
If the defendant refused testing, the prosecution would have to prove he or she was under the influence with other evidence. This may include evidence of the defendant’s driving conduct, performance on the field sobriety tests or other factors that may be taken into consideration.