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

California Vehicle Code § 23152(b) VC makes it automatically (“per se”) illegal to drive a motor vehicle with a BAC at or above 0.08%. DUI is typically a misdemeanor, and the penalties grow harsher with each conviction.

The following flowchart summarizes the California DUI case process.

In this article, our California DUI lawyers discuss the following topics re. 23152(b) VC:

• 1. Criminal Elements
• 2. Defenses
• 3. Penalties
• 4. Can I still drive?
• 5. Insurance Rates
• 6. Immigration
• 7. Expungements
• Additional Resources

1. Criminal Elements

California Vehicle Code 23152(b) VC forbids driving with a BAC (blood alcohol concentration) 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.¹

The elements of this crime are spelled out in Jury Instruction (“CALCRIM”) 2111. For you to be convicted of 23152(b) VC, California prosecutors must prove beyond a reasonable doubt the following two elements:

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 optional preliminary alcohol screening (PAS) – a roadside breath test – administered before any arrest; and
• The mandatory evidentiary breath test or evidentiary blood test 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 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.

Read our related article on refusing the evidentiary breath or blood test.

Two DUI Charges in One Case

As a California DUI suspect, you typically face charges for not only DUI per se under 23152(b) VC but also drunk driving under 23152(a) VC, which makes driving under the influence a crime even if your BAC is legal.

By charging you with both, the prosecutor gets “two bites of the apple” when trying to convict you.

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

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

2. Defenses

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 following four DUI defenses to 23152(b) VC have proven very effective with prosecutors and judges.

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 lawful when you are driving, it may rise to unlawful 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 lawful at the time you were pulled over.⁵

2) Your Breath Sample Was Tainted

Breathalyzers measure your deep lung air. However, breath samples get contaminated by your mouth air. Therefore if you have any mouth alcohol, it can cause a false BAC reading.

Mouth alcohol is residual alcohol that lingers in the mouth due to:

• Regurgitation,
• Burping/belching,
• Mouthwash, breath spray, or medicine containing alcohol,
• Dental work,
• A high-protein, low-carbohydrate diet,
• Diabetes and/or hypoglycemia, and/or
• GERD / acid reflux.

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

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

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

4) The Police Had No Reasonable Suspicion or Probable Cause

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

To show the police fell short of these standards, we rely on such evidence as:

• The police’s body cam video,
• Eyewitness testimony, and
• Your car’s GPS records.

3. Penalties

This chart summarizes the sentencing ranges for misdemeanor drunk driving cases in California. Note that the specifics 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 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, transporting a minor under 14 in the automobile, or driving with a blood alcohol concentration of 0.15% or greater.7

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

Note that a fourth (or greater) DUI within a decade is a wobbler. This means it can be a:

• Misdemeanor carrying up to 1 year in jail or
• Felony carrying up to 3 years in prison.

Also, see our related article about DUI causing injury (23153 VC), which can be a misdemeanor or a felony carrying up to four years in prison.⁹

Plea Bargains

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:

• Wet reckless (23103/23103.5 VC),
• Dry reckless (23103 VC), or
• Exhibition of speed (23109(c) VC).¹⁰

In addition to carrying lesser criminal penalties, these offenses do not trigger an automatic license suspension.

Driver’s license suspensions increase with each DUI offense.

4. Can I still drive?

Every California 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.

The following chart summarizes the suspension periods for California DUI cases.

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 license suspension kicks in after the 10-day deadline. If you do schedule a hearing, you can keep driving pending the hearing results.

5. Insurance Rates

Following a drunk driving case, your auto insurer will increase your premium rates.

You do not have to tell your insurer about DUIs unless there is an accident. Though they usually find out anyway if:

• They run a background check, or
• You apply for an SR-22 to get your license reinstated.¹²

Read more about DUIs and car insurance.

6. Immigration

Misdemeanor offenses for DUI of alcohol are generally not crimes involving moral turpitude. Therefore, they are usually not deportable.¹³

Read more about DUIs by non-citizens.

7. Expungements

After probation, you can ask the court to expunge your 23152(b) VC conviction.¹⁴ Expunged cases 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 your expunged DUI as a prior offense and
• Can impose harsher punishments in the new case.¹⁶

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

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.

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Legal References

1. Judicial Council of California Criminal Jury Instructions (2024 edition). California Jury Instructions, CALCRIM 2111. Driving With 0.08 Percent Blood Alcohol (Veh. Code, § 23152(b)):
   

   To prove that the defendant is guilty of this crime, the People must prove that:
   1. The defendant drove a vehicle;
   AND
   2. When (he/she) drove, the defendant’s blood alcohol level was 0.08 percent or more by weight.

   See, for example, People v. Reyes (Cal.App. 2024) D083326 (unpublished).
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. See also Penal Code 1203 PC; Vehicle Code 23600 VC; VC 23582; VC 23572.
   
8. Canadian Immigration and Refugee Protection Act (“IRPA”) 36; Canadian Criminal Code (“CC”) 320.14.
9. VC 23153.
10. VC 23103.5, VC 23103, VC 23109.
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.