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

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; and if you get convicted of both, it will only count as one DUI on record.

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.

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 rates increase?
• 7. What happens to immigrants?
• 8. When can I expunge my record?
• 9. Is VC 23152(b) a wobbler?

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

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.

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 these charges, the prosecutor gets “two bites of the apple” when trying to convict you. But 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?

Three 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, DUI attorneys 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. Though 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.

DUI lawyers can call on medical experts to argue your mouth alcohol caused incorrect chemical test results.

Alternatively, DUI lawyers may be able to show that the breath testing machine used on you 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 the DUI charges if there is evidence that law enforcement mishandled the evidentiary tests of your blood or breath.⁶

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

In order 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.

If your attorney can show that the police acted on insufficient evidence, the case could be dropped.

Contaminated blood tests can possibly get a DUI charge dismissed.

3. What penalties can the judge sentence me to?

A standard DUI in California is a misdemeanor punishable by

• probation,
• fines,
• DUI school,
• a license suspension,
• an ignition interlock device, and
• sometimes jail or work release.⁷

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

In certain circumstances, the D.A. may agree to plea bargain DUI charges down to

• wet reckless (VC 23103.5),
• dry reckless (VC 23103), or
• exhibition of speed (VC 23109).

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

Summary probation (also called 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 certain cases, the court will also order you 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) restitution.⁹

If you violate these probation terms, you risk 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 you win both:

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

Usually you can continue driving right away 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 is planning to suspend your license, you have only 10 days to ask for 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.

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 rates increase?

Following a DUI, your auto insurer will most likely increase your premium rates. You do not have to tell your insurance carriers about DUIs unless there was an accident.¹² But insurers often find out anyway

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

Read more about DUIs and car insurance.

7. What happens to immigrants?

In general, 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 10 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, 2 years, or 3 years.¹⁷

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

Our DUI defense attorneys fight defendants’ drunk driving charges 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 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, 198 Cal.Rptr. 145, 673 P.2d 732; People v. Bransford (1994) 8 Cal.4th 885, 35 Cal.Rptr.2d 613, 884 P.2d 70; People v. Milham (1984) 159 Cal.App.3d 487, 205 Cal.Rptr. 688.
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, 131 Cal.Rptr. 190; People v. Williams (2002) 28 Cal.4th 408, 121 Cal.Rptr.2d 854, 49 P.3d 203; People v. Esayian (2003) 112 Cal.App.4th 1031, 5 Cal.Rptr.3d 542.
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, 282 Cal.Rptr. 170; People v. Calderon (1994) 9 Cal.4th 69 , 36 Cal.Rptr.2d 333; 885 P.2d 83; People v. Cline (1998) 60 Cal.App.4th 1327, 71 Cal.Rptr.2d 41; People v. Hall (1998) 67 Cal.App.4th 128, 79 Cal. Rptr. 2d 690; People v. Roder (1983) 33 Cal.3d 491, 189 Cal.Rptr. 501, 658 P.2d 1302.
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.