California Vehicle Code 23152(a) VC makes it “unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” This means that if you display symptoms of intoxication, you can be charged with this DUI section even if there is no evidence that your blood alcohol concentration measures above the legal limit of .08%.
- Vehicle Code 23152(a) (driving under the influence) and
- Vehicle Code 23152(b) VC (driving with excessive BAC).
However, even if both of these charges are sustained, the two charges count as only a single DUI conviction.
In this article, our California DUI defense attorneys will answer the following key questions:
- 1. What does VC 23152(a) prohibit?
- 2. How can I fight the charges?
- 3. What are the DUI penalties in California?
- 4. Can I get probation instead of jail?
- 5. Will I lose my driver’s license?
- 6. Will my auto insurance rates go up?
- 7. Are there immigration consequences?
- 8. Can the criminal record be expunged?
- 9. How does a DUI affect professional licenses?
1. What does VC 23152(a) prohibit?
Vehicle Code 23152(a) VC prohibits driving under the influence of alcohol – in short, drunk driving. 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.1
Following every DUI arrest, you must submit to a breathalyzer or blood test to measure your BAC (blood alcohol content).2 But you can be convicted of DUI of alcohol even if the alcohol test results are within the legal limit of less than 0.08%. All prosecutors have to prove are two things:
- You drove a motor vehicle, and
- You were under the influence of alcohol at the time you drove.3
Prosecutors typically rely on circumstantial evidence to show that you were driving impaired by alcohol. The police will typically report that you:
- Were swerving or driving erratically,
- Smelled of alcohol,
- Had glassy, watery, and/or bloodshot eyes
- Had slurred speech,
- Walked with an uneven gate (unsteadily),
- Admitted to drinking, and/or
- Failed the PAS test and field sobriety tests.
Note that prosecutors will charge you with two separate crimes:
- Driving under the influence of alcohol – VC 23152(a), which is a subjective standard because it is not based on BAC; and
- Driving with a BAC of 0.08% or greater – VC 23152(b), which is an objective “per se” standard because it depends solely on BAC.
But even if you violate DUI both laws, you will be punished for violating only one DUI law. In essence, the two DUI crimes melt into one.4
(You may face charges of only VC 23152(a) if you refused chemical testing or if the blood results are still pending.)
2. How can I fight the charges?
There are many possible DUI defenses to VC 23152(a) charges. Three common ones include the following arguments:
- You were driving competently.
- Field sobriety tests are poor tools to measure alcohol impairment.
- The police failed to follow proper procedures.
1. Your driving was not affected by alcohol
Sober people are responsible for the majority of traffic violations and road accidents. Perhaps your driving problems were caused by non-alcohol-related reasons such as:
- A momentary distraction,
- The sun in your eyes or a glare on the windshield,
- Mechanical problems with your vehicle,
- An emergency situation, or
- Medical reasons, such as a diabetic episode, a coughing fit, allergies, or a seizure.
Note that being on drugs or in drug withdrawal is not an effective defense. Drugged driving (VC 23152(f)) or driving while addicted (VC 23152(c)) is a type of DUI and carries the same penalties as drunk driving.
2. Field sobriety tests are poor tools to measure alcohol impairment
There are many non-alcohol-related reasons why you would fail the walk-and-turn and one-leg stand tests. Examples include:
- Anxiety and nerves,
- Medical conditions, such as a balance disorder,
- The terrain was not flat enough,
- You were wearing uncomfortable shoes, and/or
- The law enforcement officers did not give you the correct instructions.
Should the case go to trial, a DUI attorney will ask the police officer to testify about all of the ways that you correctly performed the field sobriety tests. This line of questions is designed to show the court that you did far more things right than wrong.
3. The police failed to follow proper procedures
Misconduct by law enforcement may be enough to get your DUI charge dismissed. And the defense attorney can ask the court to suppress any evidence that the police may have obtained through misconduct.
Potential examples of police mistakes include:
- Not having enough “reasonable suspicion” to conduct your traffic stop;
- Not having enough probable cause to make your DUI arrest;5
- Administering the field sobriety tests incorrectly and giving you improper admonishments;
- Collecting and storing your breath and blood samples in violation of Title 17 of the California Code of Regulations;
- Coercing your confession; and/or
- Failing to read you your Miranda rights (if necessary).
Even if evidence suggests that you were driving while impaired by alcohol, one act of police misconduct could raise a reasonable doubt as to your guilt.6
3. What are the DUI penalties in California?
|Driving under the influence charge||California penalties*|
|First time DUI in 10 years||3 to 5 years of summary probation (usually just 3 years); |
Attendance at a Victim Impact Panel;
$390 to $1,000 in fines, plus penalty assessments;
6-month driver’s license suspension, though you can usually drive immediately if you install an ignition interlock device (IID) in your vehicles for 6 months;
48 hours to 6 months in jail (judges typically 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 can usually drive immediately with an IID in your cars for 1 year; and
96 hours to 1 year in jail (the court may agree to grant house arrest or a work program instead of 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 can usually drive immediately with an IID in your cars for 2 years; and
120 days to 1 year in county jail (the minimum sentence is 30 days in jail if the judge grants probation and orders a 30-month DUI school course).
|*Penalties for DUI offenses may be increased by certain aggravating circumstances, such as by speeding while DUI (VC 23582), having a child under 14 in the vehicle (VC 23572), or having a BAC of 0.15% or higher.7|
Note that you may be restricted from traveling to Canada.8
Depending on the case, prosecutors may be willing to plea bargain DUI down to such charges as wet reckless (VC 23103.5) or dry reckless (VC 23103). Also see our article on felony DUIs: A fourth-time DUI in ten years can be a felony carrying up to three years in prison.
4. Can I get probation instead of jail?
Probably. If you are convicted of a first offense of violating VC 23152(a), you will likely be eligible for informal probation instead of incarceration. However, some jail time is mandatory for second offenses, third offenses, or subsequent offenses.
Also called summary probation, informal probation typically lasts three to five years. You may remain on probation as long as you follow all court orders. These include:
- Completing all the terms of the criminal sentence, such as paying fines and attending DUI School;
- Driving win no measurable amount of alcohol in your blood (so nothing above a 0.00% blood alcohol concentration);
- Submitting to a chemical test after any future DUI arrests; and
- Not committing any other criminal offenses.
Depending on the circumstances, the judge may impose the following additional conditions:
- Attendance at Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings;
- Participation in the Mothers Against Drunk Driving (MADD) Victim Impact Program;
- Paying restitution to the car accident victims, if any;
- Completing a treatment program; and/or
- Performing community service.9
Violating the terms of probation can result in being remanded to jail. Learn more about California DUI probation violations.10
5. Will I lose my driver’s license?
The only way you can avoid a driver’s license suspension following a DUI arrest is to win both:
- The criminal case, and
- The DMV administrative hearing (which is a civil matter distinct from the criminal charge).
The length of the license revocation period increases with each successive DUI. But as long as you install an IID, you can usually resume driving right away.
|Misdemeanor DUI case in California||Length of license suspension |
|First-time offense in 10 years||If you lose the criminal case, the suspension lasts 6 months. |
If you lose the DMV case but win the criminal case, the suspension lasts 4 months.
|Second-time offense in 10 years||1 year if you install an IID. Otherwise, 2 years.|
|Third-time offense in 10 years||2 years if you install an IID. Otherwise, 3 years.11|
Note that you have only ten days to request a DMV hearing once the DMV gives you a notice of suspension/revocation. If you request the DMV hearing in time, you can continue driving pending the hearing. Otherwise, the suspension will begin on the tenth day after the notice of suspension.
Also note that if you refuse to take a chemical test following a DUI, you will face a mandatory license suspension even if your case gets dismissed.
Also see our articles about how to request a DMV hearing, restricted licenses, and refusing to take a breath or blood test (which triggers a license suspension). And see our article about DUIs and commercial driver licenses (VC 23152(d)).
6. Will my auto insurance rates go up?
Most insurance companies will increase premiums following a DUI. But unless the incident caused an accident, you have no obligation to tell the insurer about the DUI.12 The insurer may not find out about the DUI unless they run a background check. Learn more about how DUIs affect insurance and SR-22 requirements.
7. Are there immigration consequences?
If you are a non-citizen convicted of a misdemeanor offense of driving under the influence of alcohol, you should not face deportation. This is because misdemeanor DUIs involving alcohol usually do not qualify as crimes involving moral turpitude.13 Learn more about how DUI affects immigration.
8. Can the criminal record be expunged?
Once you complete your misdemeanor probation, you may petition the court to get your VC 23152(a) conviction expunged.14 Employers are forbidden from using expunged DUI cases as a basis for not hiring or promoting workers.15 But if you get charged with DUI again in the next 10 years, the expunged case will count as a prior – and the new DUI charge will carry harsher penalties.16
9. How does a DUI affect professional licenses?
If you hold a professional license and get arrested for DUI, you may be obligated to report it to your licensing board – even if the D.A. drops the charges. So check with your licensing board’s bylaws or consult with a labor law attorney about what steps are required of you.
Depending on your occupation, the licensing board may react to your DUI case by opening an investigation and either:
- Reprimanding you privately or publicly,
- Imposing administrative penalties such as fines,
- Requiring you to complete rehab,
- Restricting your license,
- Suspending your license, and/or
- Revoking your license permanently.
DUI cases tend to be taken more seriously by licensing boards if your occupation involves:
- Driving (such as chauffeurs or ambulance drivers);
- Counseling or care-taking (such as teachers or psychologists); or
- Prescribing or dispensing medications (such as doctors or pharmacy techs).
In any case, your licensing board should give you the opportunity to defend yourself at an administrative hearing and – if necessary – appeal any penalties.
Call our DUI/DWI law firm for legal advice. Our DUI lawyers have law offices throughout California, including Los Angeles, San Bernardino, Burbank, Glendale, Riverside, Orange County, Pasadena, San Diego, and more.
See our related articles on zero tolerance for underage DUI defendants (VC 23136), DUI causing bodily injury (VC 23153), and exhibition of speed (VC 23109(c)).
- California Jury Instructions, CALCRIM no. 2110. See also: People v. Schoonover (1970) 5 Cal.App.3d 101; People v. Enriquez (1996) 42 Cal.App.4th 661; and Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753.
- VC 23612(a)(2)(A); Padilla v. Meese (1986) 184 Cal.App.3d 1022; and People v. Wilson (1985) 176 Cal.App.3d Supp. 1.
- VC 23152(a); see also People v. Randolph (Cal. App. 5th Dist. 2018), 239 Cal. Rptr. 3d 395; see also Coffey v. Shiomoto (2015) 60 Cal. 4th 1198.
- Penal Code 654 PC. See also: People v. Wood (1989) 207 Cal.App.3d Supp. 11; People v. Campos (1982) 138 Cal.App.3d Supp. 1; People v. Randolph (1989) 213 Cal.App.3d Supp. 1; People v. Gallardo (1994) 22 Cal.App.4th 489; People v. Andersen (1994) 26 Cal.App.4th 1241; and People v. Grabham (Cal. App. 1st Dist., 2021), 68 Cal. App. 5th 549.
- Terry v. Ohio (1968) 392 U.S. 1. See also nhtsa.gov. See also: People v. Roder (1983) 33 Cal.3d 491; and
- See, for example, People v. Woodard (Cal. App. Dep’t Super. Ct., 1983) 143 Cal. App. 3d Supp. 1. See also: People v. Williams (2002) 28 Cal.4th 408; People v. Esayian (2003) 112 Cal.App.4th 1031; and People v. Lopez (Cal. App. 3d Dist., 2020), 260 Cal. Rptr. 3d 18.
- Vehicle Code 23536; VC 23540; VC 23646; and VC 23566. See also People v. Weathington (1991) 231 Cal.App.3d 69; People v. Calderon (1994) 9 Cal.4th 69; People v. Cline (1998) 60 Cal.App.4th 1327; People v. Hall (1998) 67 Cal.App.4th 128; and People v. Garcia (1989) 214 Cal.App.3d Supp. 1.
- Canadian Immigration and Refugee Protection Act (“IRPA”) 36; Canadian Criminal Code (“CC”) 253.
- PC 1203.
- VC 23600.
- VC 13352.
- Vehicle Code section 16000(a).
- See INA 237 (8 USC 1227).
- PC 1203.4.
- California Government Code 12952.
- PC 1203.4.