California DUI laws state that it is illegal to drive under the influence of alcohol. It is also explicitly illegal to drive with a blood alcohol concentration, or BAC, over .08%. These are essentially two laws for the same act. In other words, you can be guilty of breaking both of these laws when you drive under the influence of alcohol. Driving with a BAC over .08% is also known as the "per se" offense. If you refuse to take a BAC test, your BAC level will not be an element considered in you case so you can't be convicted of the per se offense. However, if you do refuse, you will face a longer license suspension, one whole year, than you would if you took the BAC test. If in the case you refuse the BAC test, even though the prosecution can't prove you were driving over the legal limit, you can still be charged with the first offense of driving under the influence of alcohol. The BAC test is a very important part of any DUI case and is considered proof you were driving under the influence. If you took a BAC test and your level was above the legal limit, this is enough to convict you of both offenses, even if you were not driving in an unsafe manner.

If you are unfamiliar with California DUI law or the California criminal justice system in general, it can be pretty scary to find out you are being charged twice for the same crime. It is understandable to feel like that is unfair or even a violation of your rights. However, in subtle ways, these are two separate crimes that can arise from the same act. The reasons why California has two separate DUI laws is to allow the state to convict anyone driving under the influence of alcohol, not just those over the legal limit or those who are driving unsafely. As you probably know, you may be able to have a few drinks and still get home safe. Or, alternatively, your driving may be impaired even after just one drink. Because a BAC level can vary depending on body composition, gender, alcohol tolerance, what you drank and at what rate and whether you had an empty stomach, the two DUI laws are designed to account for all this variance. For example, a larger man who is a regular drinker may be able to have several drinks and drive just fine. He may or may not have a BAC over the legal limit. If DUI law only stated it is illegal to drive under the influence, this man may walk away without a DUI, regardless of his BAC. Under both of California's DUI laws, this man may be guilty of driving with a BAC over the legal limit but not necessarily for driving under the influence and visa versa.

In reality, many people facing DUI charges in California will be charged with both crimes of driving with a BAC over .08% and for driving under the influence of alcohol. However, you will not be punished twice if you are charged with two DUI offenses. The two will merge together, for the purposes of sentencing. It is the instance or event of driving under the influence that is punished, not the separate elements of the case. Similarly, it does not matter if you are charged with both or just one, because the punishments for both are the same. For example, you will not be given separate punishments for driving impaired and for having a BAC above the legal limit; you will face the same standard DUI sentencing. This should come with some comfort. Similarly, you will not be charged with two separate DUIs for breaking both the DUI laws. Since California takes DUI recidivism so seriously, those charged with a second DUI face harsh consequences. Luckily, to be convicted of a second DUI, you must have had a whole other instance of driving under the influence. California DUI laws are complex; it is always advisable to speak to an experienced DUI defense attorney if you are facing DUI charges. Understanding the law and your rights will go a long way towards the most favorable outcome possible.

Have you or a loved one recently been arrested for a DUI? DUI defense attorney Christopher Martens knows DUI defense and will fight for your rights. With over ten years experience in criminal defense, attorney Martens will not be afraid to fight all the way for your case. Serving the Visalia and Fresno areas, The Law Offices of Christopher Martens can provide expert DUI defense counsel. Call our office at 559-967-7386 or email us at [email protected] for a free consultation.