Under the Influence as an Element of a California DUI / DWI Case

California DUI / DWI cases are prosecuted under two different theories. When a person is charged with having a blood alcohol content of .08 percent or greater, that person is charged with a violation of the per se law which says that anyone with a blood alcohol content of .08 percent or higher is, as a matter of law, considered too drunk to drive. The other law simply forbids driving under the influence of alcohol in any amount. This means that if your blood alcohol level is lower than .08 percent you may be too intoxicated to drive, but it will not be presumed as a matter of law.

The condition of the driver is the primary focus of a DUI / DWI prosecution. The prosecutor must show that at the time of driving, the motorist was either mentally impaired or physically impaired as the result of having consumed alcohol, drugs, or a combination of both drugs and alcohol. In California the legal standard for being considered under the influence is whether the driver's "physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person or ordinary prudence, under the same or similar circumstances."

The prosecution's case in a driving under the influence trial will generally be based on circumstantial evidence. The prosecutor will merely try to convince the jury based on all the circumstances a person was too drunk to drive. The prosecutor will point to several factors including the chemical tests, the officer's physical observations, the field sobriety test, the smell of alcohol, stumbling instead of walking, the inability to follow directions during the field sobriety test, or any redness of the eyes, to try to get the jury to imply that based on the circumstances the particular motorist was drunk.

The field sobriety test is set up in order to test both a person's mental and physical impairment. The problem with this test is that DUI / DWI experts agree that with respect to impairment as a result of alcohol, mental impairment always precedes physical impairment. This is important because it indicates that physical impairment alone is not symptomatic of being drunk and that physical impairment can be a result of many different factors. Consider that the field sobriety test is given on the side of roads and highways. It is rather difficult to balance with cars speeding by and all the other distractions. Physical impairment may simply be a sign that someone has poor balance or maybe weak knees.

Or consider the argument that red eyes indicate that someone is drunk. The fact is that red eyes is a physical condition or impairment and can be caused by numerous factors. Red eyes can be a result of crying or an emotional breakdown, they could stem from allergies, dry whether, or a contact lens irritation or infection.

The truth is that prosecutors will look for anything they can to build up their circumstantial case that a person was drunk. In California, it will take the experience of a knowledgeable attorney to break down the prosecutor's assertions by demonstrating the fallibility of some of the prosecutor's theories. This can be done through a meaningful discussion with a client to learn of that client's history and to determine the actual reasons for certain physical impairment.