Vehicle Code 23152(a) VC – DUI of Alcohol

Difference between Vehicle Code 23152a and 23152b?

California Vehicle Code Section 23152(a) VC makes it “unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” Motorists who display signs and symptoms of intoxication can be charged with this DUI section even if there is no evidence that their blood alcohol concentration measures above the legal limit of .08%.

Suspects who take a breath test or blood test that registers a BAC of .08 or higher are typically charged with two crimes: 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:

Intoxicated young man drinking beer while behind the wheel on the road and an example a Vehicle Code 23152(a) VC violation

VC 23152(a) forbids drunk driving, even if the driver’s BAC is less than 0.08%.

1. What does VC 23152(a) prohibit?

California Vehicle Code 23152(a) VC prohibits driving under the influence of alcohol – in short, drunk driving. This law applies when a motorist’s physical or mental abilities are impaired to the extent that he/she can no longer drive as safely as a cautious sober person.1

Following every DUI arrest, drivers must submit to a breath- or blood test.2 But drivers can be convicted of DUI of alcohol even the test results are within the legal limit of less than 0.08% BAC (blood alcohol content). All prosecutors have to prove are two things:

  1. The defendant drove a motor vehicle, and
  2. The defendant was under the influence of alcohol at the time he/she drove.3

Prosecutors typically rely on circumstantial evidence to show that the defendant was driving impaired by alcohol. Examples are that the defendant:

  • was swerving or driving erratically,
  • smelled of alcohol,
  • had glassy eyes, watery, and/or bloodshot eyes
  • had slurred speech,
  • walked with an uneven gate,
  • admitted to drinking, and/or
  • failed the field sobriety tests

Note that drunk driving suspects are always charged with two separate crimes:

  1. Driving under the influence of alcohol (VC 23152(a)), which is a subjective standard because it is not based on BAC; and
  2. Driving with a BAC of 0.08% or greater (VC 23152(b)), which is an objective “per se” standard because it is depends solely on BAC

This way, prosecutors have the opportunity to convict one DUI defendant through two avenues: 1) drunk driving, and 2) driving with a BAC of 0.08% or higher. But even if a defendant violates DUI both laws, the defendant is punished for violating only one DUI law. In essence, the two DUI crimes melt into one.4

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:

1. The defendant’s driving was not affected by alcohol

Sober people are responsible for the majority of traffic violations and road accidents. Perhaps the defendant’s driving problems were caused by non-alcohol-related reasons such as:

  • a momentary distraction,
  • fatigue,
  • the sun in the defendant’s eyes or a glare on the windshield,
  • mechanical problems with the 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 a DUI suspect would fail the walk-and-turn and one-leg-stand tests. Examples include:

  • anxiety and nerves,
  • fatigue,
  • medical conditions, such as a balance disorder,
  • the terrain was not flat enough,
  • the defendant was wearing uncomfortable shoes, and/or
  • the police did not give 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 the defendant correctly performed the field sobriety tests. This line of questions is designed to show the court that the defendant did far more things right than wrong.

3. The police failed to follow proper procedures

Misconduct by law enforcement may be enough to get a DUI charge dismissed. Potential examples of police mistakes include:

  • Not having enough “reasonable suspicion” to conduct a traffic stop;
  • Not having enough probable cause to make a DUI arrest;5
  • Administering the field sobriety tests incorrectly;
  • Collecting and storing the breath and blood samples in violation of Title 17 of the California Code of Regulations;
  • Coercing a confession; and/or
  • Failing to read the defendant his/her Miranda rights (if necessary)

Even if evidence suggests the defendant was driving while impaired by alcohol, one act of police misconduct could raise a reasonable doubt as to the defendant’s guilt.6

Police hand holding preliminary breath test to argumentative driver

Police misconduct is a possible defense to drunk driving charges.

3. What are the penalties in California?

A first, second, and third conviction of violating VC 23152(a) are usually misdemeanors. DUI conviction punishments increase with each subsequent case. Also, the specific sentence may vary by county.

Driving under the influence charge California penalties*
First time DUI in 10 years 3 to 5 years of summary probation (usually just 3 years);

DUI school

  • If BAC is less than 0.20%, 3 months of DUI school, amounting to 30 hours;
  • If BAC is 0.20% or higher, 9 months of DUI school, amounting to 90 hours

Attendance at a Victim Impact Panel;

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

6-month driver’s license suspension, though defendants can usually drive immediately if they install an IID in their 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 defendants can usually drive immediately with an IID in their 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 defendants can usually drive immediately with an IID in their 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 some DUI defendants 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.

4. Can I get probation instead of jail?

Probably. Most defendants convicted of violating VC 23152(a) are eligible for informal probation instead of incarceration. However, some jail is mandatory for second- or subsequent offenses.

Also called summary probation, informal probation typically lasts three to five years. Defendants may remain on probation as long as they 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 their 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 in Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings;
  • Participation in the Mothers Against Drunk Driving (MADD) Victim Impact Program; and/or
  • Paying restitution to the car accident victims, if any9

Violating the terms of probation can result in being remanded to jail. Learn more about California DUI probation violations.10

close-up of driver's license in wallet

Each successive DUI case carries a longer driver’s license suspension.

5. Will I lose my driver’s license?

The only way DUI defendants can avoid a driver’s license suspension is to win both:

  1. The criminal case, and
  2. 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 the defendant installs an IID, he/she can usually resume driving right away.

Misdemeanor DUI case in California Length of license suspension
First-time offense in 10 years If defendant loses the criminal case, the suspension lasts 6 months.

If defendant loses DMV case but wins criminal case, the suspension lasts 4 months.
Second-time offense in 10 years 1 year if the defendant installs an IID. Otherwise, 2 years.
Third-time offense in 10 years 2 years if the defendant installs an IID. Otherwise, 3 years.11

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).

6. Will my auto insurance rates go up?

Most insurance companies will increase premiums following a DUI. But unless the incident caused an accident, the defendant has 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?

Non-citizens convicted of a misdemeanor offense of driving under the influence of alcohol 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?

DUI defendants who complete their misdemeanor probation may petition the court to get their 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 the defendant gets 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

Group of law firm receptionists with headsets

Call our law firm for legal advice. Our criminal defense attorneys offer free consultations.

Our DUI lawyers create attorney-client relationships and have law offices throughout California, including Los Angeles, San Bernardino, Burbank, Glendale, Riverside, Orange County, Pasadena, San Diego, and more.

Legal References

  1. California Jury Instructions, CALCRIM no. 2110.
  2. VC 23612(a)(2)(A).
  3. VC 23152(a); see also People v. Randolph (Cal. App. 5th Dist. 2018), 239 Cal. Rptr. 3d 395, 28 Cal. App. 5th 602; see also Coffey v. Shiomoto (2015) 60 Cal. 4th 1198, 345 P.3d 896, 185 Cal. Rptr. 3d 538.
  4. Penal Code 654 PC.
  5. Terry v. Ohio (1968) 392 U.S. 1.
  6. See, e.g., People v. Woodard (Cal. App. Dep’t Super. Ct. Apr. 1, 1983) 143 Cal. App. 3d Supp. 1, 192 Cal. Rptr. 229.
  7. VC 23536; VC 23540; VC 23646; and VC 23566.
  8. Canadian Immigration and Refugee Protection Act (“IRPA”) 36; Canadian Criminal Code (“CC”) 253.
  9. PC 1203.
  10. VC 23600.
  11. VC 13352;
  12. Vehicle Code section 16000(a).
  13. See INA 237 (8 USC 1227).
  14. PC 1203.4.
  15. California Government Code 12952.
  16. PC 1203.4.

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