Arrested for DUI? We can help. As former cops and prosecutors, our California DUI experts know the most effective ways to challenge the reading of your blood alcohol concentration (BAC) test. We specialize in defending driving under the influence cases and will do our best to keep your record clean.
Below, our California DUI defense attorneys1 address the following:
This photograph was originally taken by Flickr user BarelyFitz/Patrick Fitzgerald and the original photo can be found here.
- Having a blood alcohol content (BAC) of 0.15% or higher
- Refusing to submit to a chemical test
- Causing an accident
- Driving at excessive speeds
- Having children under the age of 14 in the car
- Being under 21 at the time of the DUI offense
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California's DUI Laws; Vehicle Code 23152(a) Driving Under the Influence; How BAC Relates to a DUI; California DUI Defenses; Rising Blood Alcohol as a DUI Defense; Mouth Alcohol as a DUI Defense; The Effect of High-Protein/Low-Carbohydrate Diets, Hypoglycemia, and/or Diabetes on BAC Results; Medical Conditions that Serve as Legitimate DUI Defenses; Title 17 Violations and their Affect on a DUI Case; DUI Breath Testing Instruments Produce Inaccurately High BAC Results; California Felony DUI Charges; DUI causing Injury; Felony DUIs Based on Prior Convictions; California DUI Penalties; DUI DMV Hearings; DUIs and their Affect on Car Insurance; California DUI Probation; and DUI Plea Bargain Negotiations.
Although there is a common perception that "a California DUI" is one crime, it typically encompasses two separate offenses:
- driving under the influence of alcohol and/or drugs pursuant to California Vehicle Code 23152(a) VC, and
- driving with a blood alcohol concentration (BAC) of 0.08% or higher per Vehicle Code section 23152(b) VC.2
This article focuses on the second offense. For more information on the first, please review our article on Vehicle Code 23152(a) VC California's "driving under the influence" law.
The per se rule
California Vehicle Code 23152(b) VC makes it illegal to drive with a BAC of 0.08% or higher. This section is sometimes referred to as California's DUI "per se" rule.
The law presumes that if your BAC is 0.08% or greater at the time of your blood or breath test, you are guilty of DUI, regardless of whether you were actually under the influence of alcohol and/or drugs.
In order to convict you of this offense, the prosecutor must prove the following two facts (otherwise known as "elements" of the crime"):
- that you drove a vehicle, and
at the time you drove, you had 0.08% or more BAC.3
Although these elements seem pretty straight forward, they really aren't. Let's take a closer look at them to understand their legal definitions.
That you drove a vehicle
Whether or not you were "driving" is critical to a Vehicle Code section 23152(b) case. If an officer pulls you over for a traffic violation and personally observes you driving, this element is satisfied. However, there are a number of times when this may not be the case.
Sometimes people are arrested for DUI following an accident. Sometimes people are arrested for DUI when they are just sitting in their car. Sometimes people are arrested while they are asleep in their car.
The key issue is whether or not the evidence can establish that you moved the car at least some distance.4
Example: Let's say the cops find your car obstructing traffic.with the engine running.and that you are asleep behind the wheel. Given these facts, the police, judge, and jury could infer that you are the one who drove your car to that location.
Now let's switch the facts. Let's say that the cops find you asleep in your car in a parking spot on the street. Your lights are on, but the engine isn't running. Given these facts, it's not so easy to assume that you were driving.
Unlike the car that is blocking traffic in the first example, your car is legally parked, which means that you could have driven to that spot earlier in the night. It's completely plausible that you parked, went out drinking, got back into your car to leave and realized that you needed to "sleep it off" before driving. Here, there isn't enough evidence to infer that you were driving when the cops found you asleep.
At the time you were driving, you had a BAC of at least 0.08%
As Orange County DUI defense attorney Zachary McCready explains, "There is nothing illegal about having a BAC above 0.08% unless you do so while you are driving. This means that it doesn't matter if you have a BAC of 0.08% before you drive or after you drive.the only relevant timeframe for Vehicle Code 23152(b) purposes is while you are driving."
Example: Let's say that while you are driving, you hit a parked car. You leave your information on the car's windshield in accordance with Vehicle Code 20002 VC California's hit and run law.6
You drive home and begin drinking alcohol. While you are drinking your third glass of wine, the police come to question you about the accident. They conduct a DUI investigation and arrest you for driving under the influence. Once at the station, you submit to a breath test where you "blow" a 0.10%. You are subsequently arrested for Vehicle Code 23152(b) driving with a BAC of 0.08% or higher.
Given these facts, you would not be guilty of violating California's DUI laws. Your 0.10% BAC did not reflect what your BAC was at the time you drove, it reflected your BAC at the time you submitted to the test.
Even though this type of situation is actually quite common, prosecutors nonetheless still typically go after these types of cases, assuming that you were actually DUI at the time of the accident.
This is simply one reason why it is so important to consult with an attorney who specializes in defending drunk driving cases. This is because judges instruct juries in DUI cases that if
- a chemical blood or breath test was taken within three hours of the time you drove, and
- the results were 0.08% or greater
the jury may (but is not required to) infer that you had a BAC of 0.08% or higher at the time of driving.7
That begs the question -- is there any point to fighting a DUI if your BAC was at or above 0.08%? And the answer is absolutely yes. Just because you have an alleged BAC that is above the legal limit does not mean that
- you were above the legal limit at the time of driving, or
that the reported BAC result is accurate.
We explain this more in the next section.
Depending on the exact circumstances of your DUI arrest, there are a variety of California DUI defenses that apply to Vehicle Code 23152(b) VC California's law against driving with a BAC of 0.08% or greater. Some of the most common include (but are not limited to):
Your BAC was below 0.08% at the time of driving
Although we've already touched on this concept above, it requires further discussion. This defense is by no means limited to the situation where you have been drinking after you were driving.
Perhaps more common is the situation where you were "on the rise". Oftentimes, a person is still absorbing alcohol into his bloodstream at the time he/she is stopped for DUI. So his/her BAC actually rises during the period from the traffic stop until the blood or breath test.
This means that even if you "blow" a 0.10% at the station, your BAC may have only been a 0.06% at the time you drove (which is all that counts for legal purposes). As a result, a rising blood alcohol serves as a DUI defense.
This is where a DUI defense expert comes into play. As a forensic toxicologist, he/she will calculate what your BAC probably would have been at the time of driving and will often be able to convince the jury that it was below the legal limit at that time.
Making sure that the jury understands how BAC relates to a California DUI is critical, since it's the crux of Vehicle Code 23152(b) VC California's law against driving with a BAC of 0.08% or greater.
The breath sample you provided was tainted
There are several factors in a Vehicle Code 23152(b) case that can result in DUI breath testing instruments producing inaccurately high BAC results. Examples include (but are not limited to):
"Mouth alcohol" is residual alcohol that lingers in the mouth. It can be triggered by
- mouthwash, breath spray, or medicine containing alcohol,
- dental work,
- a low-carb diet (high-protein/low-carbohydrate diets, hypoglycemia, and/or diabetes can all adversely affect your BAC results), or
- a variety of other factors.
When present, this residual alcohol causes breath tests to produce falsely high BAC readings. As a result, mouth alcohol is a common DUI defense.
GERD / Acid reflux
Similarly, Gastroesophageal Reflux Disease (GERD), heartburn and acid reflux are all medical conditions that serve as legitimate DUI defenses. These medical conditions trigger mouth alcohol which produces a falsely high BAC result on a breath testing instrument.
A variety of additional factors can also affect the accuracy of your BAC results. Factors such as
- radio frequency interference "RFI" (radio transmission from cell phones, police cars, etc. can affect blood and/or breath testing instruments),
- temperature (of your breath and/or the outside temperature), and/or
- inherent error rates with DUI breath testing instruments
can all contribute to an unjustly inflated BAC, making it seem as though you were driving with a BAC of 0.08% or greater when, in fact, you were not.
The DUI breath testing instrument or machine wasn't properly maintained or calibrated
Title 17 of the California Code of Regulations governs how California DUI breath and blood tests are supposed to be conducted in Vehicle Code 23152(b) cases.8 This means that any Title 17 violations could affect the outcome of your California DUI case.
These violations could be related to the
- collection, and/or
of those samples. If Title 17 is not strictly adhered to, your results may be excluded from evidence. When your California DUI attorney is successful in getting this type of evidence excluded, it will typically result in a dismissal of your case or, at the very least, in a reduction of your driving under the influence charges.
Your blood test was improperly collected and/or stored, or was passed outside the proper "chain of custody"
Title 17 also governs
- who draws your blood,
- how that person draws your blood,
- how your blood is collected, and
- how your blood is stored.
Your drunk driving defense attorney should diligently investigate each of these issues in an effort to find a Title 17 violation.and a defense to your case.
The bottom line is this -- NEVER assume that your California Vehicle Code 23152(b) is indefensible. Experienced California DUI attorneys pride themselves on being able to scrutinize any DUI arrest to find the defenses that could lead to their client's acquittal or a reduction in the charges.
California DUI DMV hearings
In addition, your DUI lawyer can represent you at a California DMV hearing. You or your DUI attorney must request a DMV hearing within ten (10) days of your California DUI arrest.
A California DUI DMV hearing provides you with an opportunity to postpone your driver's license suspension.and an attempt to prevent it altogether. The DMV is virtually certain to side against you without skilled representation by a lawyer who specializes in California DUI defense.
California DUI penalties for a Vehicle Code 23152(b) VC conviction vary a great deal, depending on
- whether you're facing your first or subsequent DUI conviction,
- whether you are being charged with misdemeanor or felony DUI,
- the facts of your specific case, and
- your criminal history.
Most first, second, and third driving under the influence cases are prosecuted as misdemeanors. Misdemeanor penalties include (but are not limited to):
- informal California DUI probation for three to five years,
- up to one year in a county jail,
- a minimum base fine of $390,9
- successful completion of a three to 30-month California DUI school,10
- a six-month to three-year driver's license suspension11 (unless you initiate and win a California DMV DUI hearing),12
- installation of a California ignition interlock device "IID" (a new law that is valid on all first-time DUI convictions in Alameda, Los Angeles, Sacramento, and Tulare Counties),13 and
- insurance repercussions, given that California DUIs have an effect on car insurance policies.14
Felony DUI penalties
Drunk driving charges typically rise to the felony level when you are involved in either (1) a DUI causing injury, or (2) have suffered your fourth or subsequent conviction in a ten-year period (which is referred to as a felony DUI based on prior convictions).
Penalties for California felony DUIs include (but are not limited to):
- formal probation,
- up to three years in a California state prison,
- a four-year driver's license revocation, and
- designation by the California DMV as a habitual traffic offender (HTO).15
"Aggravating factors" are facts and circumstances involved in your case that increase your punishment.
The most common aggravating circumstances that are frequently seen in connection with Vehicle Code 23152(b) California's law against driving with a BAC of 0.08% or greater include (but are not limited to):
- driving with a BAC of 0.15% or more,16
- causing an accident,
- being charged with a California DUI speeding enhancement,17 and
- driving under the influence with a child in the car18 (which could alternatively be filed under Penal Code 273a California's child endangerment law).19
DUI plea bargaining
Many times, your attorney may enter into plea negotiations with the prosecutor. DUI plea bargaining is beneficial to both sides. When successfully negotiated, a plea bargain allows the prosecutor to obtain a conviction and allows you to plead guilty to a reduced charge.
Some of the most frequent charges resulting from Vehicle Code 23152(b) VC reduction include:
- Vehicle Code 23103 per 23103.5 VC California's "wet reckless" law,20
- Vehicle Code 23103 VC California's "dry reckless" law,21 and
- Vehicle Code 23109(c) VC California's "exhibition of speed" law.22
Finally, it's important to understand that even if you're convicted of Vehicle Code 23152(a) and VC 23152(b) VC, you will only be penalized once. The offenses "merge" for purposes of sentencing, which means that you are sentenced for the DUI as only one offense.23
Call us for help.
If you or loved one is charged with Vehicle Code 23152(b) driving with a BAC .08 or higher and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada DUI defense attorneys are available to answer any questions relating to Nevada's DUI laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.24
1Our California DUI defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2California Vehicle Code 23152 VC -- Driving under the influence. ("(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.")
3California Jury Instructions, Criminal (CALJIC 16.830.1) -- Misdemeanor driving with 0.08% alcohol.
4People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 8. ("With regard to the offense of driving under the influence of an alcoholic beverage or drug (Vehicle Code � 23152, subd. (a), a "slight movement" of the vehicle in the officer's presence has been a determinative factor in concluding whether or not a defendant was "driving" in the presence of the officer. ( Henslee v. DMV (1985) 168 Cal.App.3d 445, 450-453 [214 Cal.Rptr. 249]; see also People v. Engleman (1981) 116 Cal.App.3d Supp. 14, 18-20 [172 Cal.Rptr. 474].) In other words, a "slight movement" of the vehicle constitutes direct evidence that the vehicle was being "driven." (Cf. People v. Kelley, supra., 27 Cal.App.2d Supp. 771, 772-774.).On the other hand, where the sufficiency of the evidence to support the judgment is in question, as contrasted with the validity of a defendant's arrest,FN4 it is clear that the existence of evidence establishing a "slight movement" of the vehicle does not present a problem. FN5 In the absence of such direct evidence of "driving", the element of "driving" may nonetheless be established at trial through circumstantial evidence.")
5Orange County DUI defense attorney Zachary McCready defends clients accused of violating Vehicle Code 23152(b) VC California's law against driving with a BAC of 0.08% or greater throughout Orange County, including Fullerton, Anaheim, Newport Beach, Santa Ana, Irvine and Westminster.
6Vehicle Code 20002 VC California's hit and run law. ("(a) The driver of any vehicle involved in an accident resulting only in damage to any property, including vehicles, shall immediately stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize the safety of other motorists. Moving the vehicle in accordance with this subdivision does not affect the question of fault. The driver shall also immediately do either of the following.(2) Leave in a conspicuous place on the vehicle or other property damaged a written notice giving the name and address of the driver and of the owner of the vehicle involved and a statement of the circumstances thereof and shall without unnecessary delay notify the police department of the city wherein the collision occurred or, if the collision occurred in unincorporated territory, the local headquarters of the Department of the California Highway Patrol.")
7CALJIC 12.61.1 -- Driving With 0.08 Percent or More (Inference). ("(Vehicle Code �� 23152, subdivision (b) [California's law against driving with a 0.08% or greater] and 23153, subdivision (b)). If the evidence establishes beyond a reasonable doubt that (1) a sample of defendant's blood, breath or urine was obtained within three hours after [he] [she] operated a vehicle and (2) that a chemical analysis of the sample established that there was 0.08 percent or more, by weight, of alcohol in the defendant's blood at the time of the performance of the chemical test, then you may, but are not required to, infer that the defendant drove a vehicle with 0.08 percent or more, by weight, of alcohol in [his] [her] blood at the time of the alleged offense.")
8Title 17 of the California Code of Regulations regulates all evidentiary procedures relating to California blood and breath testing, which is why we say that California Title 17 violations could affect the outcome of your DUI case.
9See Vehicle Code sections 23536 - 23548 for California DUI penalties for misdemeanor offenses.
10California DUI schools are regulated by Health and Safety Code sections 11836 et seq.
11License suspensions required for DUI cases are regulated by California Vehicle code sections 13350 et seq.
12California DMV DUI hearings must be requested within ten-days of your DUI arrest. For more information about DMV DUI hearings, and their connection to Vehicle Code 23152(b), please review our articles on DMV hearings.
13California Vehicle Code 23700 et seq. -- California's new ignition interlock device "IID" law.
14California DUIs almost always have an effect on car insurance policies. However, when your insurance company can take action against your policy is strictly limited. For more information, please review our article on DUI and Car Insurance.
15California Vehicle Code 23550 -- DUI penalties. Multiple offenses; punishment. ("(a) If a person is convicted of a violation of Vehicle Code 23152 [California's law against driving with a BAC of 0.08% or greater] and the offense occurred within 10 years of three or more separate violations of Section 23103 vc, as specified in Section 23103.5 vc, or Section 23152 vc or 23153 vc, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1, 000). The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (7) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (b) A person convicted of a violation of Section 23152 vc punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350.")
See also California Vehicle Code 23552 -- DUI sentencing. Additional conditions of probation for multiple offenders. ("(b) In addition to subdivision (a), if the court grants probation to any person punished under Section 23550, the court may order as a condition of probation that the person participate, for at least 30 months subsequent to the underlying conviction and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code... (c) In addition to the provisions of Section 23600 and subdivision (a), if the court grants probation to any person punished under Section 23550 who has not previously completed a treatment program pursuant to paragraph (4) of subdivision (b) of Section 23542 or paragraph (4) of subdivision (b) of Section 23562, and unless the person is ordered to participate in, and complete, a program under subdivision (b), the court shall impose as a condition of probation that the person, subsequent to the date of the current violation, enroll in and participate, for at least 18 months and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court.")
16California Vehicle Code 23578 -- DUI punishments. Conviction of violation of Vehicle Code 23152 or 23153; alcohol concentration or refusal to take chemical test as special factor; penalty enhancement or probation. ("In addition to any other provision of this code, if a person is convicted of a violation of vc 23152 [California's law against driving with a BAC of 0.08% or greater] or vc 23153, the court shall consider a concentration of alcohol in the person's blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.")
17Vehicle Code 23582 VC California's DUI speeding enhancement. ("(a) Any person who drives a vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, and in a manner prohibited by Section 23103 during the commission of a violation of [Vehicle Code] Section 23152 [California's driving under the influence law] or 23153 shall, in addition to the punishment prescribed for that person upon conviction of a violation of Section 23152 or 23153, be punished by an additional and consecutive term of 60 days in the county jail.")
18California Vehicle Code 23572 VC -- Minor in car; enhanced punishment. ("(a) If any person is convicted of a violation of Section 23152 and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed: (1) If the person is convicted of a violation of Section 23152 punishable under Section 23536, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part of which shall be stayed. (2) If a person is convicted of a violation of Section 23152 punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed. (3) If a person is convicted of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed. (4) If a person is convicted of a violation of Section 23152 which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed. (b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven. (c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident.")
19Penal Code 273a California's child endangerment law. ("(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death [which includes violating Vehicle Code 23152(b) driving with a BAC of 0.08% or greater], willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.")
20Vehicle Code 23103 per 23103.5 VC California's "wet reckless" law. ("(a) If the prosecution agrees to a plea of guilty or nolo contendere to a charge of a violation of Section 23103 in satisfaction of, or as a substitute for, an original charge of a violation of [Vehicle Code] Section 23152 [California's driving under the influence law], the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of an alcoholic beverage or the ingestion or administration of a drug by the defendant in connection with the offense.")
21Vehicle Code 23103 VC California's "dry reckless" law. ("(a) A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.")
22Vehicle Code 23109(c) VC California's "exhibition of speed" law. ("(c) A person shall not engage in a motor vehicle exhibition of speed on a highway, and a person shall not aid or abet in a motor vehicle exhibition of speed on any highway.")
23California Penal Code 654 -- Offenses punishable in different ways by different provisions; double jeopardy; denial of probation. ("(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.")
24Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's DUI laws. Their Nevada law offices are located in Reno and Las Vegas.