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Los Angeles DUI Attorneys California Vehicle Code Section 23152(b) VC Driving with a BAC of .08% or Higher

Overview of California DUI Laws

In California, In order to convict a person of DUI, the prosecution must prove beyond a reasonable doubt that the accused drove a vehicle while under the influence of alcohol, drugs, or both ; or, that the accused drove a vehicle with 0.08 percent or more, by weight, of alcohol in their blood. Depending on the circumstances, a DUI case may be charged as a misdemeanor or as a felony. It may be charged as a felony where someone is injured (usually when an accident is involved), or where the accused has three or more prior DUI convictions (or convictions that count as a prior DUI, such as a wet reckless). These convictions must have occurred within 10 years of the new charge to count against the accused as a prior conviction.

If you are accused or suspected of Petty Theft, call us at (800) 458-1488 immediately!

When you are pulled over and the police officer suspects you of DUI, there are certain things that the law requires you to do, and certain things that are voluntary. The only thing that the law requires you to do is submit to a chemical testing of your blood or breath at the police station after being arrested. Everything else, such as answering their questions, performing field sobriety tests, or blowing into the Preliminary Alcohol Screening test (PAS test), is voluntary! (For more information, see our page on what to do if suspected of DUI)

DUI is a very serious crime in California. Depending on whether you are charged with a misdemeanor or a felony, a conviction could mean spending the next 4 years in a California state prison. In addition to criminal penalties, getting stopped for DUI puts your driving privilege in jeopardy. You need an experienced lawyer on your side in these cases not just because the law is confusing, but because it has a time limit. In California, you have 10 days to request a DMV hearing after being charged with a DUI. If you don't request a hearing in that time, your license will be suspended for up to one year.

Many people facing DUI charges are afraid of losing their driver's license. In Southern California, this is an honest fear. More than just about any place on earth, people who live in the Los Angeles area need a car. We drive to work. We drive kids to school. We drive to run errands. For most people, there isn't a day that goes by that doesn't have a good chunk of it spent behind the wheel.

Therefore, if you or a loved one has been charged with DUI in Los Angeles, having an experienced and aggressive Los Angeles DUI attorney fighting for you may mean the difference between freedom and prison and between keeping and losing your license. At CDI, [our team of DUI attorneys/our founder, Chad Lewin have/has] over (inter # of years) of experience successfully defending clients from DUI charges. If, after reading our comprehensive analysis of California DUI laws below, you have questions or would like to speak to a Los Angeles DUI attorney, call attorney Chad Lewin/the attorneys at CDI immediately for a FREE, CONFIDENTIAL consultation at (888) 546-5394. We are available 24 hours a day, 7 days a week to help you.

California Vehicle Code Section 23152 VC Examined

In California, most DUIs fall under one of two definitions under Vehicle Code Section 23152 VC, either the “subjective” definition under 23152(a) VC or the “per se” definition under 23152(b) VC. Violation of either definition of DUI is usually a separate misdemeanor offense. While almost everyone is familiar with the “per se” definition under 23152(b) VC, which states that it is a crime for any person to drive a vehicle with a blood alcohol content (BAC) of .08% or higher, most people are shocked when they become aware that the “subjective” definition under 23152(a) VC even exists. You may be surprised to learn that, under 23152(a) VC, it is a crime for any person who is “under the influence” of any alcoholic beverage, regardless of that person’s blood alcohol content (BAC), to drive a vehicle. The key to 23152(a) VC is the language “under the influence”, which is defined as your physical and mental abilities being impaired to the point that you can no longer drive as well as a normal cautious sober person.

California DUI laws are purposely set up in this manner, using these two different definitions, so that law enforcement can arrest more people for DUI and prosecutors can obtain more DUI convictions. The reason why these two definitions lead to more DUI arrests and convictions is because it allows Vehicle Code Section 23152 VC to account for different levels of tolerance in different people.

Example:

Cindy just recently turned 21 and has never had a drink in her life. She and her friends go out to a bar to celebrate Cindy’s first drink. Cindy, who weighs 120 pounds, has 2 cocktails with her friends. When Cindy gets into her car to drive home she has a .06% BAC, below the “legal limit” of .08 % BAC. Yet, because of her low tolerance to alcohol, her ability to drive has become impaired. Cindy gets pulled over for swerving in and out of her lane numerous times. Because of her driving and the smell of alcohol on her breath, Cindy is asked to perform Field Sobriety Tests (FSTs) and an on-field Breath Test (PAS). Incorrectly thinking she has no other choice, Cindy consents to both. Cindy performs very poorly on the FSTs, but blows only a .06% BAC on the breathalyzer. Despite blowing less than a .08% BAC, the cop believes Cindy is “under the influence” and arrests her for suspicion of DUI under Vehicle Code Section 23152(a) VC.

Note:

If 23152(a) VC did not exist, Cindy could not be arrested nor convicted for DUI under the current language of 23152(b) VC. This is because, regardless of how impaired her ability to drive was, she had a BAC under .08%.

Example:

Jake is 60 years old, weighs 240 pounds, and is a lifetime drinker. Jake goes to his favorite sports bar to have some beers and catch his favorite team play. When Jake gets into his car to drive home he has a .10% BAC, above the “legal limit” of .08% BAC. Yet, because of his high tolerance to alcohol, his ability to drive has not become impaired. Jake gets pulled over for a busted taillight, despite otherwise driving perfectly. Because of the smell of alcohol on his breath, Jake is asked to perform Field Sobriety Tests (FSTs) and an on-field Breath Test (PAS). Incorrectly thinking he has no other choice, Jake consents to both. Jake performs very well on the FSTs, but blows a .10% BAC on the breathalyzer. Despite not showing any sings of impairment and performing well on the FSTs, the cop arrests Jake for suspicion of DUI under Vehicle Code Section 23152(b).

Note:

If 23152(b) VC did not exist, Jake would likely not be arrested nor convicted for DUI under the current language of 23152(a) VC. This is because, regardless of how high his BAC was, his ability to drive was not impaired.

Practically speaking, most people arrested for DUI are charged with both 23152(a) and 23152(b). Usually, when negotiating a plea deal, a skilled attorney will be able to get the prosecutor to drop one of the offenses. Additionally, at trial, you could be found guilty of both offenses, guilty of only one, or not guilty of both. Even if you are found guilty of both offenses, you will be punished as if you were only convicted of one of them.

The rest of this article will discuss the “per se” definition of DUI under Vehicle Code Section 23152(b) VC. For a discussion of the “subjective” definition of DUI under Vehicle Code Section 23152(a) VC, please see our page on Driving under the influence/DUI regardless of BAC.

How is Vehicle Code 23152(b) VC DUI Prosecuted?

Under California Vehicle Code Section 23152(b) VC, in order to convict you of the “per se” kind of DUI, the prosecution must establish the following elements:

  1. You drove a vehicle; AND
  2. While you were driving, you had a blood alcohol concentration (BAC) of .08% or more.
  1. You drove a vehicle

    The key to this element is that the prosecutor must prove that while you were driving, you had a BAC of .08% or more. It is not enough for the prosecutor to just prove that you had a BAC of .08% or more, while inside or near a car.

    Obviously, when you are pulled over while driving, this element is easy to establish. Yet, it is in those situations where a cop does not personally witness you driving, such as when you are found sleeping in a car or a cop responds to an accident site that makes this element more difficult for the prosecutor to prove.

    To deal with these special situations, California court decisions have provided some guidance as to what constitutes driving and what evidence can be used to prove it. California courts have ruled that a “slight movement” of the vehicle is required to establish driving. Additionally, those same courts have stated that, in the absence of direct evidence, circumstantial evidence can be used to prove that “slight movement.” Circumstantial evidence is evidence that shows guilt, not directly, such as an eye witness, but through inferences made from the surrounding circumstances.

    Example:

    Cindy went to the bar to celebrate her 21st birthday. She had numerous drinks and a BAC of .11% when she left the bar. Despite being over the legal limit of .08% BAC, Cindy decides to drive home, which is 10 miles away from the bar. Cindy ends up parked on her front lawn, passed out in the driver’s seat of her car, with the engine running and lights on. A cop who didn’t see her drive, but sees her car on the lawn, investigates, and, after blowing over the legal limit, places her under arrest for suspicion of DUI.

    Cindy will likely be found to have driven her car, despite no one, including the cop, actually witnessing her driving. This is because, based on the circumstantial evidence, such as the car being found 10 miles away from the bar, on Cindy’s lawn with the engine running, and Cindy being found alone with no evidence of other potential drivers, the inference can be made that Cindy drove her car home.

    Compare with

    Example:

    Same as above, except that, instead of driving home from the bar, Cindy decides to sleep it off in her car before driving. While sleeping in the back seat, a cop notices Cindy’s headlights are on and approaches her vehicle. After blowing over the legal limit, he arrests her for suspicion of DUI.

    It will be unlikely that Cindy will be found to have driven her car, since the circumstantial evidence against her is weak. Specifically, Cindy was found sleeping in the back seat of her car, not in the driver’s seat. Additionally, her engine was not on and likely cool to the touch. Lastly, she was found legally parked at the bar, which was 10 miles away from her home.

  2. You had a blood alcohol concentration (BAC) of .08% or more

    Remember, your BAC only matters during the time you were actually driving. If you had a BAC of .08% or higher after you finished driving, then you cannot be convicted of DUI under the language of Vehicle Code Section 23152(b) VC.

    Example:

    Here, Ron should not be convicted of DUI, pursuant to 23152(b) VC, because, even though he was over the legal limit, he was completely sober during the period of time that he was actually driving. It was only after he finished driving that Ron began drinking and his BAC went over .08%.

    Despite such situations being quite common, prosecutors, unfortunately, often still pursue DUI charges under these facts assuming you actually had that BAC while driving. Prosecutors are willing to still pursue charges because they rely on a presumption that Section 23152(b) creates, which states that if:

    1. You had a BAC of .08% or more at the time you took a chemical test; AND
    2. You took that chemical test within 3 hours of driving

    The jury may (but doesn’t have to) presume that you had a BAC of .08% or higher at the time you drove.

    Yet, this is a rebuttable presumption, which means it can be overturned or disproven with evidence that you did not in fact have a BAC of .08% or higher while you were driving. (See Defenses below). This presumption is yet another reason why it is a good idea for a person charged with DUI to speak to a knowledgeable DUI attorney to properly defend you.

Defenses to California DUI--Driving With a BAC of .08% or Higher

While you may feel like fighting a DUI charge is hopeless, remember, a conviction requires all 12 jurors to agree on your guilt. A skilled Los Angeles DUI criminal defense attorney can create doubt in these categories, making the prosecution's evidence against you seem shaky. At CDI, our unshakable commitment to putting the interests of our clients first, coupled with our strong work ethic and commitment to leaving no stone unturned has resulted in countless acquittals, dismissals, and reduced charges for our clients. The following are but a few of the possible defenses our attorneys can utilize to win your case.

  1. The Rising Blood Alcohol Defense

    This defense is closely related to the above discussion about not having a BAC of .08% or higher while driving, but it isn’t limited to situations where you began drinking only after you stopped driving.

    The rising blood alcohol defense is based on the way in which the human body metabolizes alcohol. Simply put, it takes time for the alcohol you’ve ingested to be absorbed by your body and, thus, raise your BAC. There are many factors that affect the rate of absorption of alcohol in your body, such as the strength of the drinks, how fast you consumed them, your body weight and type, your gender, illnesses, fatigue, medications, and whether you drank on an empty or full stomach.

    Generally, it takes on average anywhere from 30 minutes to 3 hours for your body to absorb a drink and have it raise your BAC. This is also the time is takes on average for your body to reach its “peak BAC” after you finish drinking. After your body reaches its peak BAC, your BAC will then begin to decrease with the passage of time. Therefore, if you took your last drink relatively close in time to when you began driving, your BAC may not have gone up until after you stopped driving.

    Example:

    Tom is out with friends to celebrate his new job. Tom has had a few drinks and a BAC of .06% when his friends convince him to have one last drink. Tom doesn’t plan on leaving the bar for a while, so he agrees. After he finishes the drink, he receives a call from his mother that his father is in the hospital. Upon hearing the news, Tom runs to his car and races to the hospital. While Tom is driving, he still has a BAC of .06%. He then gets pulled over for speeding and is arrested for suspicion of DUI. By the time he takes the chemical test at the station, an hour has passed and his body has absorbed the last drink he had. The results of the chemical test show that Tom has a BAC of .09%, over the legal limit. Tom gets charged with Vehicle Code Section 23152(b) VC.

    Here, if Tom’s defense attorney can properly utilize the rising blood alcohol defense and show that, at the time he drove, Tom’s BAC was actually only .06% and not .09%, Tom should not be found guilty of DUI for driving with a BAC of .08% or higher.

  2. The Chemical Test was Not Properly Administered (AKA Violation of Title 17)

    The manner in which chemical tests are administered by the police is governed by Title 17 of the California Code of Regulations. If the police violate any of the protocols set forth in Title 17, the test results could be deemed inaccurate and, therefore, the prosecution may not be able to use them against you.

    Title 17 Protocols for DUI Blood Tests

    Under Title 17 of the California Code of Regulations, the police must do all of the following when administering a DUI blood test:

    • Only a qualified individual listed in Section 13354 of Vehicle Code may draw the blood
    • Nothing alcohol-based can be used to sterilize the site where the blood will be drawn
    • There must be the correct amount of unexpired anticoagulant and preservative in the vial with the blood sample
    • The blood sample must be properly maintained

    A violation of any of the above requirements could cause an inaccurate blood test result.

    Title 17 Protocols for DUI Breath Tests

    Under Title 17 of the California Code of Regulations, the police must do all of the following when administering a DUI breath test:

    • The breath sample must consist of deep lung air
    • The breath sample can only be collected after the person giving the sample has been observed for at least 15 minutes prior to the collection of the breath sample.
    • During the 15 minute observation period, the person giving the sample must not have ingested alcoholic or other beverages, regurgitated, vomited, eaten, or smoked
    • The DUI breath testing instrument must be accurate
    • To determine such accuracy, the breath testing instrument must be calibrated every 10 days or after 150 uses, whichever occurs first
    • The person administering the test must have been properly trained in using the breath testing instrument

    A violation of any of the above requirements could cause an inaccurate breath test result.

  3. Your Breath Sample was Contaminated

    There are a number of reasons why the breath sample you gave was contaminated and, therefore, resulted in an inaccurately high BAC reading.

    Mouth Alcohol

    Mouth alcohol is the most prevalent reason why breath samples are contaminated. As you will see, this is why so many of the Title 17 regulations for breath tests (discussed above) are directed towards preventing mouth alcohol contamination.

    Mouth alcohol is alcohol that remains in the mouth for a variety of reasons, which can prevent breath testing instruments from accurately measuring deep lung air and, thus, creates inaccurately high BAC readings.

    Mouth alcohol can be caused by any of the following:

    • Burping
    • Regurgitation
    • Medicines containing alcohol
    • Chewing tobacco
    • Dental work
    • Mouthwashes containing alcohol
    • Mints or breath sprays containing alcohol
    • Medical conditions, such as diabetes, acid reflux, or heartburn
    • Other factors

Additional Causes of Contamination

Your breath sample could also have been contaminated because of “RFI” or radio frequency interference. This occurs when interference from nearby electronic devices (cellphones, cars, etc.) affect the breath test instrument and causes inaccurate results.

Additionally, the temperature of your breath and/or the temperature outside can also cause inaccurate test results.

Criminal Penalties for California DUI

Under California law, a violation of Vehicle Code Section 23152(b) VC, could be charged as either a misdemeanor or a felony, depending on the specific circumstances of your case and whether or not you have prior DUI or “DUI-like” convictions (see our page on wet reckless).

Generally, most first, second, and third DUIs are charged as misdemeanors, yet the penalties become greater with each subsequent DUI.

The fourth DUI and each DUI after are usually charged as a felony, if you have three or more prior DUI or “DUI-like” convictions within the past 10 years of the current charge. (See our page on Felony DUI based on prior convictions). Additionally, regardless of whether you have any prior DUI convictions at all, if you are DUI and cause injury or death to another, you will face felony charges. (See our page on Felony DUI causing injury or death). Lastly, if you have ever been convicted of felony DUI, each subsequent DUI will be charged as a felony, regardless of how old the felony DUI conviction is. (See our page on Felony DUI based on prior Felony DUI conviction).

If convicted of California misdemeanor DUI, you face any or all of the following:

  • Up to 5 years of Informal probation (see our page on probation)
  • Up to 1 year in county jail
  • A fine up to $1,000
  • Completion of an alcohol treatment program
  • License suspension of 6 months to 4 years
  • Installation of an interlock device in your car (this new law is valid for even first time DUI convictions in Alameda, Los Angeles, Tulare, and Sacramento Counties)
  • If convicted of California felony DUI, you face any or all of the following:

  • Minimum 5 years Formal probation (see our page on probation)
  • Up to 4 years in a California State Prison
    • Additional prison time is possible, if the DUI involved aggravating factors, such as great bodily injury to at least one victim or there are numerous injured victims
    • Strike if DUI involved great bodily injury to at least one victim
  • A fine up to $5,000
  • Completion of an alcohol treatment program
  • Up to a 5 year revocation of your license
  • Designation as a habitual traffic offender by the California DMV

Administrative Penalties for California DUI (DMV Hearing)

In addition to the above criminal penalties, you also face separate administrative penalties, namely suspension or revocation of your license by the DMV. Unlike criminal penalties, which are assessed after you are convicted of DUI, the DMV can and will suspend or revoke your license simply because you’ve been charged with DUI.

For example, in California, you have 10 days to request a DMV hearing after being charged with DUI. If you don't request a hearing, your license will be suspended for up to one year.

For more information, please see our page on how to fight and win a DMV Hearing.

Related Offenses

Driving under the influence regardless of BAC (Vehicle Code Section 23152(a) VC)

As mentioned above, this is the “subjective” definition of California DUI. Under Vehicle Code Section 23152(a) VC, it is a crime for any person who is “under the influence” of any alcoholic beverage, regardless of that person’s BAC, to drive a vehicle. The penalties are identical to those of a violation of Section 23152(b) VC above, but the elements of the crime and available defenses are very different.

For more information, please see our page on DUI regardless of BAC.

Driving under the influence of drugs (DUID) (Vehicle Code Section 23152(e) VC)

Driving under the influence of alcohol is not the only way to get a DUI. Under Vehicle Code Section 23152(e), it is a crime for a person who is under the influence of any drug to drive a vehicle. There are many complex restrictions regarding driving under the influence of drugs, even legal over the counter drugs.

For more information, please see our page on DUID Driving under the influence of drugs.

Felony DUI (Vehicle Code Section 23152(b) VC)

As mentioned above, there are three circumstances where a person can be charged with felony DUI. Each type of felony DUI has different elements and available defenses.

For more information, please see our pages on Felony DUI based on prior convictions, Felony DUI causing injury or death, and Felony DUI based on prior felony DUI conviction.

Underage driving with a BAC of .01% or higher (Vehicle Code Section 23136 VC)

This is the least criminal DUI charge. Being charged with Vehicle Code Section 23136 isn't technically the same as being charged with a crime. This is because drivers with a BAC between .01% and .05% aren't legally drunk. Also, common medicines that contain alcohol can leave your BAC over .01%. The only penalty for this charge is a one year license suspension.

For more information, please see our page on Underage DUI.

Underage Driving with a BAC of .05% or Higher (Vehicle Code Section 23140 VC)

This is the least criminal DUI charge. Being charged with Vehicle Code Section 23136 VC isn't technically the same as being charged with a crime. This is because drivers with a BAC between .01% and .05% aren't legally drunk. Also, common medicines that contain alcohol can leave your BAC over .01%. The only penalty for this charge is a one year license suspension.

For more information, please see our page on Underage DUI.

Underage Driving with a BAC of .05% or Higher (Vehicle Code Section 23140 VC)

This is the most common underage DUI charge. Because anyone who gets caught with a BAC of .08% gets charged as an adult. This is the charge that really means "Underage DUI." This charge won't lead to jail time. But, an underage DUI conviction will automatically lead to a one year license suspension and a fine. Drivers 18 to 21 years old charged with DUI also have to attend a mandatory alcohol education program for at least three months.

For more information, please see our page on Underage DUI.

Contact DUI Attorney at Criminal Defense Incorporated

Our Los Angeles DUI defense attorneys have a long track record of success in DUI cases. Without an experienced and aggressive attorney fighting for you, your conviction could result in the loss of your license and freedom and the destruction of your future. If you've been charged with DUI in California, time is of the essence! Every minute you wait matters, so call attorney Chad Lewin at CDI immediately for a FREE, CONFIDENTIAL consultation at (888) 546-5394. We are available 24 hours a day, 7 days a week to help you or your loved ones.


  1. Vehicle Code Section 23152(a) VC.
  2. Vehicle Code Section 23152(b) VC.
  3. Vehicle Code Sections 23152 and 23153 VC – Felony DUI – punishment.
  4. Vehicle Code Section 23152(b) VC.
  5. Vehicle Code Section 23152(a) VC.
  6. Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2110 – Driving Under the Influence.
  7. Vehicle Code Section 23152(b) VC.
  8. People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 8.
  9. Id.
  10. Vehicle Code Section 23152(b) VC.
  11. Id.
  12. Mcwell.nd.edu, Alcohol Absorption Rate Factors
  13. Id.
  14. Id.
  15. Id.
  16. Title 17, section 1219.1 -- Blood Collection and Retention
  17. Title 17, section 1219.1 -- Breath Collection
  18. People v. McNeal (2009), 46 Cal.4th 1183, 1191.
  19. Vehicle Code Section 23153 VC.
  20. Vehicle Code Section 23550 VC.
  21. Vehicle Code Section 23550.5 VC.
  22. Vehicle Code Sections 23536 - 23548 VC.
  23. Vehicle Code Section 23566 VC.
  24. Vehicle Code Section 23152(a) VC.
  25. Vehicle Code Section 23136.
  26. Vehicle Code Section 23140.
  27. Id.


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