Preliminary Considerations for Attorneys.

Most driving under the influence (DUI) arrests initiate two separate cases. The first case is the DUI criminal case which is ordinarily prosecuted by the District Attorney in the county where the DUI arrest occurred. The second case is the California Department of Motor Vehicles (DMV) DUI case which commences a driver's license suspension action if the person has a California driver's license or a privilege suspension action if the person is licensed by a state other than California.

In the DUI criminal case, the prosecuting attorney will ordinarily file a document called a "Complaint" which alleges two separate violations of the California Vehicle Code. The first violation is driving under the influence in violation of California Vehicle Code section 23152, subdivision (a), while the second violation is driving with a blood alcohol level of 0.08% or greater in violation of California Vehicle Code section 23152, subdivision (b). To state it differently, the prosecuting attorney gets two chances to convict a person of DUI.

The California DMV is interested in whether a person was driving a motor vehicle with a blood alcohol level of 0.08% or more. This is one of the same charges the prosecuting attorney will allege, but there is a difference. While the prosecuting attorney must prove the case beyond a reasonable doubt, the DMV must only prove the DMV DUI case by a legal standard referred to as preponderance of the evidence. What preponderance of the evidence means is that the DMV must prove the case by establishing it was more likely than not that the person accused of DUI was driving with a blood or breath alcohol level of 0.08% or more.

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