California Vehicle Code 23152(b) VC makes it automatically (per se) illegal to drive a vehicle with a blood alcohol content (BAC) at or above 0.08%. Driving under the influence (DUI) is typically charged as a misdemeanor unless there are aggravating circumstances.
VC 23152(b) says, "It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in their blood to drive a vehicle."
Simply put, this CA DUI law forbids driving with a BAC of at least 0.08%. It does not matter if you have a high alcohol tolerance and are driving safely without being impaired by alcohol.
Suppose your breath or blood test shows a BAC of 0.08% or higher. In that case, you will typically face charges of both VC 23152(a) VC drunk driving and VC 23152(b) driving with a BAC of at least 0.08% (DUI per se).
To convict you, the prosecutor must only prove beyond a reasonable doubt (CALCRIM 2111) that you were driving a motor vehicle and had a BAC of 0.08% or greater by weight.
To prove blood alcohol content (BAC), prosecutors normally rely on the results of the optional preliminary alcohol screening (PAS), which is a roadside breath test administered before a DUI arrest.
They will also rely on the mandatory evidentiary breath test or evidentiary blood test you take after your arrest. Notably, prosecutors do not need to use any circumstantial evidence, such as erratic driving or breath smelling of alcohol, to prove you were driving drunk.
Even if you commit both drunk driving (VC 23152(a)) and driving with a blood alcohol level of 0.08% or higher, you can get convicted of only one crime, as the two DUI offenses combine into one.
Notably, a misdemeanor DUI in California can lead to harsh penalties, such as substantial fines, probation, license suspension, mandatory DUI classes, and the possibility of jail time. These facts underscore the seriousness of the offense and the potential impact on your life.
Misdemeanor DUI in CA
As noted, most misdemeanor DUI offenses are prosecuted as violations of VC 23152(a), VC 23152(b), or both.
Vehicle Code 23152(a) makes it unlawful to operate a vehicle while under the influence of alcohol or drugs. Legal authorities define being "under the influence" as having impaired physical or mental abilities to the extent that you cannot exercise the caution typical of a sober person under similar circumstances.
Understanding these legal definitions is crucial for your defense, empowering you with the knowledge to navigate the legal system. Simply put, this law applies when your physical or mental abilities are impaired to the extent that you can no longer drive as safely as a cautious, sober person.
After a DUI arrest, you must submit to a breathalyzer or blood test to measure your BAC (blood alcohol content). You can be convicted of DUI alcohol even if the alcohol test results are within the legal limit of less than 0.08%.
Vehicle Code 23152(b) focuses on a standard of intoxication by prohibiting driving with a BAC of 0.08% or higher. Suppose the chemical test shows that a driver exceeds this legal limit. In that case, they can be charged under this law even when there are no visible signs of impairment.
This "per se" DUI law simplifies prosecution because it relies solely on BAC evidence. To prove blood alcohol content, prosecutors typically rely on the results of the following:
- The preliminary alcohol screening (PAS), a roadside breath test administered before any arrest, and
- The mandatory evidentiary breath test or evidentiary blood test taken after the arrest.
Notably, sober people can have a BAC level above the legal limit of .08%
As noted, you will typically face charges for not only DUI per se under 23152(b) VC but also drunk driving under 23152(a) VC, making driving under the influence a crime even if your BAC is legal.
When Is DUI Filed as a Felony?
Understanding the difference between a misdemeanor and a felony DUI can help you gauge the potential severity of your charges. Most DUIs in California are classified as misdemeanors, but the district attorney can escalate it to a DUI felony offense if any of the following are true:
- It's your fourth DUI, or "wet reckless," offense within 10 years.
- You have a prior felony DUI conviction, or
- If anyone was injured or killed as a result of the DUI..
Notably, a felony DUI will typically result in significantly higher fines and prison time if you are convicted.
What are Misdemeanor DUI Penalties?
Driving under the influence is normally filed as a misdemeanor, and the DUI penalties will become more severe with each conviction. A misdemeanor DUI conviction carries a range of penalties that can escalate depending on aggravating factors, including a refusal to submit to a chemical test or a particularly high BAC level.
For a first, second, or third offense, penalties may include the following.
- Probation lasting three to five years. DUI offenders often serve informal probation as an alternative to jail time.
- Jail Time includes up to six months in county jail, while subsequent offenses often result in up to a year in jail.
- Fines and Fees that include standard fines and court-related fees.
- Alcohol Programs that include mandatory enrollment and completion of alcohol and drug education classes are common requirements.
- Driver's License Suspension by the Department of Motor Vehicles (DMV), which is responsible for suspending or restricting the driving privileges for at least 6 months on a first offense.
- Installation of an Ignition Interlock Device (IID) ordered by the court for repeat offenders. IID installation is a breathalyzer for your car, preventing the vehicle from starting unless the driver provides a clean breath test by blowing into the device.
What are Aggravating Factors?
Certain factors will enhance the DUI penalties, such as the following:
- Excessively high BAC levels (0.15% or greater).
- Endangerment of minors (passengers under 14 in the vehicle).
- Reckless driving, such as excessive speeding.
- Refusal to submit to chemical testing.
Each of these aggravating circumstances can increase sentencing, leading to additional financial penalties or extended jail time.
What are Common DUI Defenses?
DUI defendants might have several valid defenses available. A skilled DUI lawyer can review the circumstances of your case to develop a defense strategy. Some of the most common DUI defenses include the following:
- Lack of Probable Cause. Police must have a valid reason to pull over a vehicle during a traffic stop. Suppose the stop was made without probable cause, such as a traffic violation. In that case, any evidence may be suppressed.
- Procedural Errors. Police must follow specific legal protocols during a DUI investigation and arrest. Mistakes, such as improperly administering breath tests or failing to advise the suspect of their rights, can weaken the prosecution's case.
- Challenging Chemical Testing Results. The breathalyzer and blood tests can be challenged due to faulty equipment calibration or improper handling of evidence that might have skewed the results.
- You Were Not Impaired. Common signs of perceived impairment may have other explanations, such as fatigue or illness.
For additional information, contact our criminal defense law firm, Cron, Israels & Stark, located in Los Angeles, CA.
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