Before you call us:

Please note: Our firm only handles criminal and DUI cases, and only in California. We do not handle any of the following cases:

  • civil matters
  • CCWs or gun right restoration
  • labor
  • family law
  • immigration
  • landlord/tenant
  • harassment
  • restraining orders

And we do not handle any cases outside of California.

Call Us Now

    Get Quick Legal Help...

    We usually respond in 5 minutes.

    Vehicle Code § 23152(b) VC – DUI Based on BAC .08% or Greater

    Vehicle Code 23152a vs 23152b? A former DA Explains the Difference

    Vehicle Code § 23152(b) VC is California’s “per se” DUI law. This section makes it “per se” (or automatically) illegal to drive a vehicle with a BAC at or above the legal limit of 0.08 percent, regardless of whether you are actually intoxicated or your driving ability is actually impaired.

    If you get arrested for § 23152(b) VC, the police will almost always charge you with § 23152(a) VC (driving under the influence of alcohol) as well. Even though these are two separate crimes, they have identical penalties. Even if you get convicted of both, it will only count as one DUI on record.

    California DUI crime

    Legal definition
    23152(a) VC – “Drunk driving””
    		 Driving impaired by alcohol, and it does not matter if your BAC is below the legal limit.
    23152(b) VC – “DUI per se”
    		 Driving with a BAC of .08% or higher, and it does not matter if you are sober and driving safely.

    Violating VC 23152(b) is typically a misdemeanor unless you have a prior felony DUI conviction or the incident resulted in a serious injury. The DUI penalties grow harsher with each successive conviction, and they vary by county.

    DUI process flowchart in California

    In this article, our California DUI lawyers discuss:

    Motorist drinking a bottle of beer behind the wheel, committing DUI

    VC 23152(b) prohibits driving with a BAC of 0.08% or greater, even if the driver is sober.

    1. What does VC 23152(b) prohibit?

    California Vehicle Code 23152(b) VC 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 the alcohol. Driving with an illegal BAC is per se illegal.1

    This crime has two elements that prosecutors must show:

    1. You were driving an automobile, and
    2. You had a BAC of 0.08% or greater by weight.2

    How prosecutors prove BAC

    To prove blood alcohol content, prosecutors rely on the results of the breath test or blood test that you take following your arrest.3 Prosecutors do not need any circumstantial evidence – such as bad driving or slurred speech – to show that you were drunk. Sober people can have a BAC level above the legal limit.

    Example: In Los Angeles Jerry is pulled over for a broken tail light. During the traffic stop, the officer smells alcohol. However Jerry displays no symptoms of intoxication, such as lack of coordination and motor skills.

    Jerry passes the field sobriety tests with flying colors, but he blows a .08 on the preliminary alcohol screening (PAS). Even though Jerry is clearly sober, the officer arrests him for driving with an unlawful BAC, and Jerry must submit to an evidentiary breath or blood test.

    Two DUI charges in one case

    As a California DUI suspect, you typically face charges for two separate offenses:

    1. Driving with a BAC of 0.08% or greater (VC 23152(b)) – an objective standard that rests on BAC, and
    2. Driving under the influence of alcohol (VC 23152(a)) – a subjective standard that does not depend on BAC.

    By charging you with both, the prosecutor gets “two bites of the apple” when trying to convict you. Though even when you commit both drunk driving and driving with a blood-alcohol level of 0.08% or higher, you can get convicted of just one crime. In short, the two DUI offenses combine into one.4

    2. What are the best defenses in California?

    Here at Shouse Law Group, we have decades of combined experience representing thousands of people charged with driving with an illegal BAC. We have found that the four most effective DUI defenses to VC 23152 b are to show that:

    1. Your BAC was really below 0.08% at the time of driving;
    2. Your breath sample was tainted;
    3. The chemical testing equipment was compromised; and/or
    4. The police had no reasonable suspicion or probable cause.

    2.1. Your BAC was below 0.08% at the time of driving

    You may still be absorbing alcohol into your bloodstream when you get stopped for DUI. So even if your BAC is legal at the time you are driving, it may rise to illegal levels when you take the breath or blood test one or two hours later.

    In these cases involving rising blood alcohol, we can hire a forensic toxicologist to show that your BAC was probably legal at the time you were pulled over.5

    2.2. Your breath sample was tainted

    Breathalyzers are supposed to measure your deep lung air. However, in many cases, breath samples get contaminated by your mouth air. Then, if you have any mouth alcohol, it can cause an inaccurately high BAC reading.

    Mouth alcohol is residual alcohol that lingers in the mouth. This can be triggered by:

    • regurgitation,
    • burping/belching,
    • mouthwash, breath spray, or medicine containing alcohol,
    • dental work,
    • a high-protein, low-carbohydrate diet,
    • diabetes and/or hypoglycemia,
    • GERD / Acid reflux, and/or
    • other factors.

    To show that your mouth alcohol caused incorrect chemical test results, we call on medical experts to examine the evidence and testify in your favor at trial (if necessary).

    In other past cases, we have also been able to show that the breath testing machine may not have been calibrated correctly or that the tech tasked with maintaining it let their certification lapse.

    2.3. The chemical testing equipment was compromised

    Title 17 of the California Code of Regulations governs how DUI breath and blood tests are supposed to be conducted. It may be possible to get BAC samples excluded from evidence if police officers failed to adhere to the Title 17 standards for:

    • maintenance,
    • operation,
    • certification,
    • collection, and/or
    • storage (including the proper “chain of command”).

    So even if your BAC result was 0.08% or greater, prosecutors may agree to reduce or dismiss your DUI charges if our investigation shows that law enforcement mishandled the evidentiary tests of your blood or breath.6

    2.4. The police had no reasonable suspicion or probable cause.

    To perform a legal traffic stop, police need reasonable suspicion that you are violating a law. Furthermore, police cannot lawfully arrest you unless they have probable cause you committed a crime.

    Therefore we try to show that the police acted on insufficient evidence by looking to the police’s body cam video, eyewitness testimony, and your car’s GPS records.

    DUI suspect getting blood drawn following VC 23152(b) arrest

    Contaminated blood tests can often get a 23152(b) VC DUI charge dismissed.

    3. What penalties can the judge sentence me to?

    Driving under the influence offense
    		 California punishments*
    First time DUI in 10 years
    		 3 to 5 years of summary probation (typically 3 years);

    DUI school for 3 months if your BAC is < .20%; otherwise, 9 months;

    Victim Impact Panel attendance;

    $390 to $1,000 in fines, plus penalty assessments;

    6-month driver’s license suspension, but you may usually drive right away if you install an ignition interlock device (IID) in your cars for 6 months;

    48 hours to 6 months in jail (courts usually order no jail if they grant probation); and

    Work release (depending on the county)
    Second time DUI in 10 years
    		 3 to 5 years of summary probation;

    18-month or 30-month DUI school course;

    $390 to $1,000 in fines, plus penalty assessments;

    2-year driver’s license suspension, though you may usually drive right away with an IID in your cars for 1 year; and

    96 hours to 1 year in jail (the judge may agree to grant house arrest or a work program rather than jail)
    Third time DUI in 10 years
    		 3 to 5 years of summary probation;

    30-month DUI school course;

    $390 to $1,000 in fines, plus penalty assessments;

    3-year driver’s license suspension, though you may usually drive right away with an IID in your vehicles for 2 years; and

    120 days to 1 year in county jail (the minimum jail sentence is 30 days if the court grants probation and orders a 30-month DUI school class)
    *The sentence may increase in aggravating circumstances, such as by going over the speed limit while DUI (VC 23582), transporting a minor under 14 in the automobile (VC 23572), or driving with a blood alcohol concentration of 0.15% or greater.7

    In addition, you may be banned from traveling to Canada.8

    Over the decades, we have persuaded D.A.s to plea bargain down DUIs literally thousands of times. Typically, prosecutors lessen DUI charges to either:

    Note that a fourth (or greater) DUI within a decade can be a misdemeanor or a felony carrying up to three years in prison.

    Also, see our related article about DUI causing injury (VC 23153), which can be a misdemeanor or a felony carrying up to four years in prison.

    4. Can I avoid jail by doing probation?

    In our experience fighting DUI charges, we can usually persuade the judge to grant summary probation in place of jail. There are some mandatory jail sentences for second or successive DUI convictions.

    Summary probation (informal probation) usually spans three to five years. The terms of probation include:

    • Abiding by the terms of the sentence, such as paying the fines in full and completing DUI School;
    • Not driving with any measurable amount of alcohol in your system;
    • Agreeing to take an evidentiary breath or blood tests should you get another DUI arrest; and
    • Staying out of trouble (committing no other crimes).

    In some instances, we have also seen courts order the following:

    If you violate these probation terms, you risk being sent to jail. Read more about DUI probation violations.10

    Police reviewing license of pulled over DUI suspect

    Driver’s license suspensions increase with each DUI offense.

    5. Will I still be able to drive?

    Every DUI arrest results in a license suspension unless you win both:

    1. The criminal case, and
    2. The DMV hearing (which is an administrative matter separate from the criminal case).

    However, you can usually continue driving immediately if you install an IID in your motor vehicle.

    Misdemeanor DUI case in California Length of license suspension
    First-time offense in 10 years If you are convicted in the criminal case, the suspension is for 6 months.

    If you lose the DMV case but win the criminal case, the suspension is for 4 months.
    Second-time offense in 10 years 1 year as long as you install an IID. If not, then 2 years.
    Third-time offense in 10 years 2 years as long as you install an IID. If not, then 3 years.11

    Once you receive notice that the DMV plans to suspend your license, you have only 10 days to request a DMV hearing to contest the license suspension. (The police typically give you this notice of suspension once they confiscate your license after your DUI arrest.)

    If you do not schedule a DMV hearing, the applicable license suspension takes effect after the 10-day deadline. We represent you in both your criminal and DMV cases, and we can request your DMV hearing.

    Also read our articles about

    6. Will my car insurance rates increase?

    Following a DUI, your auto insurer will likely increase your premium rates.

    You do not have to tell your insurance carriers about DUIs unless there is an accident. Though from what we see in these cases, insurers often find out anyway

    • through a background check or
    • if you apply for an SR-22 to get your license reinstated.12

    Read more about DUIs and car insurance.

    7. What happens to immigrants?

    In our experience, misdemeanor offenses for DUI of alcohol are not crimes involving moral turpitude and are therefore not deportable.13 Read more about DUIs by non-citizens.

    8. When can I expunge my record?

    After you finish your summary probation, you can ask the court to expunge your VC 23152(b) conviction.14 The main benefit of expungement is that the DUI case can no longer disqualify you from being hired or promoted.15 However, if you pick up another DUI within 10 years, the court

    • will still treat the expunged DUI as a prior offense and
    • can impose harsher punishments.16

    9. Is VC 23152(b) a wobbler?

    VC 23152 is a wobbler when you have three or more prior misdemeanor DUI convictions in the past ten years. Prosecutors can then bring charges for either a:

    • misdemeanor carrying up to 1 year in county jail; or
    • felony carrying a county jail term of 16 months, two years, or three years.17

    When clients contact us after a DUI arrest, we try to do a prefile intervention where we contact the prosecutor before they file charges to persuade them to treat the matter as a misdemeanor rather than a felony. Misdemeanors carry much lesser penalties and are easier to negotiate a plea deal for.

    Note that if you have a prior felony DUI conviction, any future DUI cases automatically get charged as a felony.18

    Additional resources

    For more information, refer to the following:

    1. Alcoholics Anonymous – 12-step program for overcoming alcoholism.
    2. Drunk Driving Overview – NHTSA page on drunk driving statistics and prevention.
    3. Impaired Driving: Get the Facts – CDC fact sheet on impaired driving.
    4. Driving Under the Influence (DUI) – California DMV page on driver license suspension for DUIs.
    5. MADD – Non-profit organization devoted to stopping drunk driving.

    Legal References

    1. California Jury Instructions, CALCRIM 2111.
    2. Vehicle Code 23152(a) VC. See also People v. Fish (Cal. App. 2d Dist. 2018); Coffey v. Shiomoto (2015), 60 Cal. 4th 1198; Burg v. Municipal Court (1983) 35 Cal.3d 257, 673 P.2d 732; People v. Bransford (1994) 8 Cal.4th 885, 884 P.2d 70; People v. Milham (1984) 159 Cal.App.3d 487.
    3. Vehicle Code 23612(a)(2)(A) VC.
    4. Penal Code 654 PC.
    5. Terry v. Ohio (1968) 392 U.S. 1.
    6. See People v. Woodard (Cal. App. Dep’t Super. Ct. Apr. 1, 1983). See also People v. Adams (1976) 59 Cal.App.3d 559; People v. Williams (2002) 28 Cal.4th 408, 49 P.3d 203; People v. Esayian (2003) 112 Cal.App.4th 1031.
    7. Vehicle Code 23536 VC; Vehicle Code 23540 VC; Vehicle Code 23646 VC; and Vehicle Code 23566 VC. See also People v. Weathington, (1991) 231 Cal.App.3d 69; People v. Calderon (1994) 9 Cal.4th 69 ; 885 P.2d 83; People v. Cline (1998) 60 Cal.App.4th 1327; People v. Hall (1998) 67 Cal.App.4th 128; People v. Roder (1983) 33 Cal.3d 491, 658 P.2d 1302; People v. Morgan (Cal. App. 4th Dist., 2023) 87 Cal. App. 5th 858.
    8. Canadian Immigration and Refugee Protection Act (“IRPA”) 36; Canadian Criminal Code (“CC”) 320.14.
    9. Penal Code 1203 PC.
    10. Vehicle Code 23600 VC.
    11. Vehicle Code 13352 VC; see also Murphey v. Shiomoto 13 Cal. App. 5th 1052.
    12. California Vehicle Code section 16000(a) VC.
    13. 8 USC 1227.
    14. Penal Code 1203.4 PC.
    15. California Government Code 12952 GC.
    16. Penal Code 1203.4 PC.
    17. Vehicle Code 23550 VC.
    18. Vehicle Code 23550.5 VC.

      Contact Our Firm

      We usually respond in 5 minutes.

      Menu

      24/7 Help: