California Vehicle Code Section 23152(b)

Driving with a Blood Alcohol Content (BAC) of 0.08% or higher

Our California DUI defense attorneys are located throughout Southern California. We have local DUI law offices in Riverside, Los Angeles, Orange County and in all nearby cities.

Although there is a common perception that "a California DUI" is one crime, it actually encompasses two separate offenses:

1. Driving under the influence of alcohol and/or drugs pursuant to California Vehicle Code 23152(a) VC, and



2. Driving with a blood alcohol content (BAC) of 0.08% or higher per California Vehicle Code section 23152(b) VC.

In this article, our California DUI lawyers will explain the second offense -- California Vehicle Code 23152((b) VC, driving with a BAC of 0.08% or above.

California Vehicle Code Section 23152(b) VC -- Driving With a Blood Alcohol Concentration of 0.08% or Greater

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.

That begs the question -- is there any point to fighting my California DUI if my BAC was at or above 0.08%? The answer is absolutely yes.especially if you are represented by a skilled DUI attorney who knows exactly how to challenge that evidence.

What are the Defenses to Driving with an Excessive BAC under California Vehicle Code Section 23152(b)?

Depending on the exact circumstances of your California DUI arrest, there are a variety of DUI defenses that a seasoned California Vehicle Code section 23152(b) attorney could argue. The following is a brief sample:

• Your BAC was below 0.08% at the time of driving-

California DUI law is time-specific. The only thing that matters is whether you had a BAC of 0.08% or higher at the time you drove. Often times, a person is still absorbing alcohol into his bloodstream at the time he is stopped for DUI. So his BAC actually rises during the period from the traffic stop until the blood or breath test. Thus he may have "blown" a .10 at the station....yet his BAC had only been a .06 at the time of driving (which is all that counts for legal purposes).

That being said, jurors are still instructed that

1. If a chemical blood or breath test was taken within three hours of when you drove, and



2. The results were 0.08% or greater, then



3. The jury may (but are not required to) conclude that you had a BAC of 0.08% or higher at the time of driving.

This is where a California DUI defense expert comes into play. As a forensic toxicologist, he/she will calculate what your BAC 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.

• The breath sample you provided was tainted

There are several factors that can cause a breath test to produce an inaccurately high BAC result. Examples include (but are not limited to):

• Mouth-alcohol (caused by regurgitation, burping/belching, mouthwash, breath spray, medicine containing alcohol, dental work, a low-carb diet, or a variety of other factors)



• Temperature (of your breath and/or of the weather),

• The breath testing instrument or machine wasn't properly maintained or calibrated

Title 17 of the California Code of Regulations governs how California DUI blood and breath tests are supposed to be conducted. This includes the maintenance, operation, collection, and storage of those samples. If this code isn't complied with, 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 California DUI charges.

• Your blood test was improperly collected and/or stored, or was passed outside the proper "chain of custody"

Blood tests are also regulated by California's Title 17. Who draws your blood, how that person draws your blood, how your blood is collected, and how your blood is stored.these are all issues that are open to attack.

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 California DUI arrest to find the defenses that could lead to their client's acquittal or a reduction in the charges.

In addition, a qualified drunk driving attorney can defend you at a California DMV hearing. You or your California DUI attorney must request a DMV hearing within ten (10) days of your California DUI arrest. A California DMV hearing provides you with an opportunity to postpone your driver's license suspension.and to hopefully prevent it altogether. The DMV is virtually guaranteed to win without skilled representation by a lawyer who specializes in California DUI defense.

Penalties, Punishment, and Sentencing for California Vehicle Code 23152(b) VC -- Driving with a Legally Excessive BAC

California DUI sentences vary a great deal, depending on (1) whether you're facing your first or subsequent DUI conviction, (2) whether you are being charged with misdemeanor or felony DUI, (3) the facts of your specific case, and (4) your criminal history. The following are the guidelines for a first DUI conviction:

• Informal probation for three to five years,



• Possible county jail time (depending on whether there were any aggravating circumstances)



• *Aggravating circumstances include (but are not limited to):



• A high BAC (typically 0.20% or greater -- lower in some counties),



• Causing an accident,



• Reckless driving, or



• Having a child under 14 years old in the car.



• Between $390 and $1,000 in fines, plus court costs



• A court-approved DUI school, and



• A six- to ten-month suspension of your California driver's license.

Even if you're convicted of both VC 23152(a) and VC 23152(b), you will only be punished for one DUI offense. This is because the crimes "merge" for purposes of sentencing, which means that you can only be convicted of and sentenced for one DUI offense.

Despite this "per se" law, just because you're arrested for driving with a blood alcohol concentration of 0.08% or greater doesn't mean you have to be convicted of driving with a blood alcohol concentration of 0.08% or greater. To learn more about how we can help, we invite you to contact us at one of our Southern California local DUI law offices.

Join us to discuss your criminal case at any of our
local offices: You can also contact us 24/7 at
888.327.4652 for a free consultation