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The "A" Count

Buzzed Driving is Drunk Driving freeway sign

Have you ever seen these signs while driving down the interstate or highway? 

In this section we will discuss California Vehicle Code section 23152(a), also known as The "A" Count. 

What must the prosecutor show in order to find me guilty of the "A" count?

In order to prove the crime of driving under the influence, the prosecutor must show:

1. You drove a vehicle, and

2. When you drove a vehicle, you were under the influence of alcohol.

Element 1: You drove a vehicle

In most cases the prosecution will be able to prove that you drove a vehicle because the arresting officer will have seen you driving or will have pulled you over during a traffic stop. However, this is not required. The prosecution can use circumstantial evidence to prove that you were driving a vehicle. This may be through witness statements, your own statements, or the officer's observations.

For example: An officer arrives on scene to an accident, two people are claimed to have been in the car. Both are intoxicated. One individual is 5’3 and the other is 6’4. Both claim that they were not driving the vehicle at the time of the accident. However, the officer looks around and notices that the driver seat is pushed forward up to the steering wheel and the mirrors are all set to a person of a smaller size. This is circumstantial evidence that the shorter person was the one driving the vehicle.

Element 2: Under the Influence

In order to be considered under the influence as a result of alcohol use, your mental or physical abilities have to be so impaired that you are unable to drive a vehicle with the caution of a sober person. The manner in which a person drives is, by itself, not enough to establish whether that person is under the influence, but it is a factor that can be considered.

Here is the practical matter that many individuals, and even some criminal defense attorneys do not understand.   Only a person whose proved these elements to a jury before can truly understand how simple this can be for a prosecutor. The key to this crime is that “mental or physical abilities are so impaired” that you are unable “to drive a vehicle with the caution of a sober person.”  As a prosecutor, it was only necessary to establish that a person’s mental or physical abilities were impaired, and that this impairment prevents them from operating a vehicle the way a sober person does.

Physical Impairment:

A prosecutor will prove physical impairment through the field sobriety tests, mainly the walk-and-turn, the Romberg, and the one leg stand. Each of these tests will measure a person’s physical ability in a variety of small tasks. These tasks are designed to mimic the everyday skills that a person uses while driving.  

Mental Impairment:

The key to mental impairment will come most from the use of the field sobriety test known as the Horizontal Gaze Nystagmus. This is the test most people know about from a DUI, where the officer moves his finger back and forth in front of the driver. The officer is looking for six specific clues that will indicate alcohol consumption.  Those clues combined with the other field sobriety tests and an alcohol chemical test reading will be used to show mental impairment.

Drive with the caution of a sober person:

Now, let’s say the prosecutor has established either physical or mental impairment, how do they show the second part, that you were unable to drive with the caution of a sober person?  In many cases it will come down to a single witness…the criminalist. The prosecution will call a criminalist who will testify to the effects of alcohol on the human body. The criminalist will tell the jury that mental impairment can set in as low as a BAC of .03 and physical impairment a .05.

Think about all the things that you do while driving a vehicle. You are maintaining your speed, operating gas and brake pedals, checking mirrors, switching lanes, operating various knobs or switches, judging distance, and dealing with numerous other distractions.  Using the criminalist testimony, the prosecutor will argue that your alcohol consumption has reduced your ability to do these tasks. All it takes is one minor difference between alcohol and sober person and the prosecutor has established that you were under the influence.

Legal Presumption based on BAC

While the prosecutor is not required to prove that you had a specific BAC for the purposes of the "A" count, your BAC will be a factor that they will rely on, should it be over .08%.  

In every criminal trial, the jury is given a set of instructions from the judge for each crime charged. These tell the jury what elements the prosecutor must prove and then it will provide them with some additional information. The jury instruction for VC 23152(a) reads as follows:

"If the evidence establishes beyond a reasonable doubt that at the time of the chemical analysis of the defendant's blood, breath, or urine, there was .08 percent or more by weight of alcohol in the defendant's blood, you may, but are not required to, infer that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense.


The prosecutor is going to put on evidence that you had a BAC of .08 or higher.  Once they do that, they will not only argue that you were under the influence as outlined above, they are going to say that the law allows the jury to assume that you were under the influence if you were a .08 or higher. 

This is important because field sobriety tests are highly subjective.  The officer may misread clues, may have messed up giving instructions, or you might have actually performed well on them.  Here, the prosecutor can tell the jury that if they throw out all of that information, they can still find you guilty because the criminalist said you had a BAC .08 or higher. 

Dedicated DUI Attorney

Kevin Ballard is a dedicated DUI attorney based in Fairfield who understands how to effectively defend those charged with DUIs. Kevin is one of the few attorneys who is both a former prosecutor and trained as a police officer. As such, Kevin knows first hand how DUIs are handled from the initial traffic stop through prosecution and appeal. Let the Law Office of Kevin L. Ballard help you today defend your rights and protect your liberty.

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