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

Updated July 16, 2021

23152(b) VC is the California Vehicle Code section that makes it “unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” This offense is a misdemeanor punishable by probation, fines, DUI school, a license suspension, an ignition interlock device and sometimes jail or work release.

Section 23152(b) VC is referred to as California’s “per se” DUI law. This means that motorists can be charged with this offense for driving with an excessive BAC, regardless of whether they are actually intoxicated or whether their driving ability is actually impaired. BAC is measured by either a breath test or a blood test.

Motorists arrested for DUI in California are frequently charged with this section as well as Vehicle Code 23152(a) VC – driving under the influence. These are considered two separate crimes. But even if you are convicted of both of them based on the same incident, it only counts as one DUI conviction on your record.

In this article, our California DUI defense attorneys discuss:

• 1. What does VC 23152(b) prohibit?
• 2. What are the best defenses in California?
• 3. What penalties can the judge sentence me to?
• 4. Can I avoid jail by doing probation?
• 5. Will I still be able to drive?
• 6. Will my car insurance be affected?
• 7. Can immigrant defendants be deported?
• 8. When can I expunge my record?

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 the driver has a high alcohol tolerance and is driving safely without being impaired from the alcohol. Driving with an illegal BAC is per se illegal.¹

This crime has two elements that prosecutors must show:

1. The defendant was driving an automobile, and
2. The defendant had a BAC of 0.08% or greater.²

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

In California, DUI suspects 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
2. Driving under the influence of alcohol (VC 23152(a)) – a subjective standard that does not depend on BAC

By prosecuting DUI suspects with both these charges, the D.A. gets “two bites of the apple” when trying to convict the defendant. But even when defendants commit both drunk driving and driving with a blood-alcohol level of 0.08% or higher, defendants are convicted of just one crime. In short, the two DUI offenses combine into one.⁴

2. What are the best defenses in California?

Three effective DUI defenses to VC 23152(b) charges include the following:

a. The defendant’s BAC was below 0.08% at the time of driving

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

In these cases involving rising blood alcohol, DUI attorneys can hire a forensic toxicologist to show that the defendant’s BAC was probably legal at the time he/she was pulled over.⁵

b. The defendant’s breath sample was tainted

Breathalyzers are supposed to measure a DUI suspect’s deep lung air. But in many cases, breath samples get contaminated by a suspect’s mouth air. And if the defendant has any mouth alcohol, it can cause an inaccurately high BAC reading.

Mouth alcohol is residual alcohol that lingers in the mouth. It 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

DUI lawyers can call on medical experts to argue the defendant’s mouth alcohol caused incorrect chemical test readings.

c. 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 a defendant’s BAC result was 0.08% or greater, prosecutors may agree to reduce or dismiss the DUI charges if there is evidence that law enforcement mishandled the evidentiary tests of the person’s blood or breath.⁶

Contaminated blood tests can possibly get a DUI charge dismissed.

3. What penalties can the judge sentence me to?

Violating VC 23152(b) is typically a misdemeanor unless the defendant has 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.

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 If BAC is lower than 0.20%, 3 months of DUI school, which is about 30 hours; If BAC is 0.20% or greater, 9 months of DUI school, which is about 90 hours Victim Impact Panel attendance; $390 to $1,000 in fines, plus penalty assessments; 6-month driver’s license suspension, but defendants may usually drive right away if they install IID in their 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 defendants may usually drive right away with an IID in their 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 defendants may usually drive right away with an IID in their 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 BAC of 0.15% or greater.7

In addition, some DUI defendants may be banned from travel to Canada.⁸

In certain circumstances, the D.A. may agree to plea bargain DUI charges down to wet reckless (VC 23103.5) or dry reckless (VC 23103). Also, read our article about felony DUI in California.

4. Can I avoid jail by doing probation?

In many cases, courts do grant DUI defendants summary probation in lieu of jail. But there are some mandatory jail sentences for second- or successive DUI convictions.

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

• Abiding by the criminal sentence, such as paying the fines in full and completing DUI School;
• Driving with a 0.00% blood alcohol concentration;
• Agreeing to take an evidentiary breath or blood tests should the defendant get another DUI arrest; and
• Staying out of trouble (committing no other crimes)

In certain cases, the court will also order defendants to do the following:

• Attend Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings;
• Participate in the Mothers Against Drunk Driving (MADD) Victim Impact Program; and/or
• Paying the victims (if any) restitution⁹

Anyone who violates these probation terms risks being sent to jail. Read more about DUI probation violations.¹⁰

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 the defendant wins both:

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

Most defendants can continue driving right away if they get an IID installed.

Misdemeanor DUI case in California	Length of license suspension
First-time offense in 10 years	If the defendant is convicted in the criminal case, the suspension is for 6 months. If the defendant loses the DMV case but wins the criminal case, the suspension is for 4 months.
Second-time offense in 10 years	1 year as long as the defendant installs an IID. If not, then 2 years.
Third-time offense in 10 years	2 years as long as the defendant installs an IID. If not, then 3 years.11

Also read our articles about how to get a DMV administrative hearing, restricted license rules, and chemical test refusals (which trigger a license revocation).

6. Will my car insurance be affected?

Following a DUI, the defendant’s auto insurer will most likely increase premium rates. Defendants are not required to tell their insurance carriers about DUIs unless there was an accident.¹² But insurers often find out anyway through a background check or if the defendant applies for an SR-22 to get his/her license reinstated. Read more about DUIs and car insurance.

7. Can immigrant defendants be deported?

In general, misdemeanor offenses of 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 DUI defendants finish their summary probation, they can ask the court to expunge their VC 23152(b) conviction.¹⁴ The main benefit of expungement is that the DUI case can no longer disqualify workers from being hired or promoted.¹⁵ However if the defendant picks up another DUI within 10 years, the court will still treat the expunged DUI as a prior offense and can impose harsher punishments.¹⁶

Call our DUI law firm for help. Our criminal defense attorneys offer free consultations.

We create attorney-client relationships throughout California, including Los Angeles County, Santa Clarita, Riverside, Newport Beach, San Bernardino, Glendale, Long Beach, Santa Ana, Ventura, San Fernando, San Diego, Pasadena, Orange County, and more.

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Legal References

1. California Jury Instructions, CALCRIM no. 2111.
2. VC 23152(a); see also People v. Fish (Cal. App. 2d Dist. 2018); see also Coffey v. Shiomoto (2015), 60 Cal. 4th 1198.
3. VC 23612(a)(2)(A).
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).
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; see also 
12. Murphey v. Shiomoto 13 Cal. App. 5th 1052.
13. California Vehicle Code section 16000(a) VC.
14. 8 USC 1227.
15. PC 1203.4.
16. California Government Code 12952.
17. PC 1203.4.