Vehicle Code 23152(b) VC – Driving with a BAC .08 or Greater

California Vehicle Code 23152(b) VC makes it a crime to drive a motor vehicle with a blood alcohol concentration (“BAC”) of 0.08% or higher.¹ Often referred to as California’s “per se” DUI law, this section means that someone driving “over the BAC limit” is automatically guilty of DUI, even if it cannot be proven that he or she is actually “under the influence” of the alcohol.

Vehicle Code 23152(b) VC reads: “(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

A first, second or third offense DUI is treated as a misdemeanor in California. The penalties for DUI include misdemeanor probation, fines, DUI school, and a drivers license suspension (though it may be possible to continue driving if the defendant installs an ignition interlock device (IID) in his/her cars).

This section is almost always charged together with Vehicle Code 23152(a) VC California’s “driving under the influence” law.

Below, our California DUI defense attorneys address the following:

• 1. What is the Legal Definition of Vehicle Code 23152(b) Driving with a BAC of 0.08% or Higher?
• 2. How Can I Fight VC 23152(b) Charges?
• 3. What are the Penalties for VC 23152(b) DUI?

Note that California has several other “per se” limits that apply to special classes of drivers. These include:

• Vehicle Code 23152(d) -- DUI by drivers of commercial vehicles (.04%);
• Vehicle Code 23152(e) -- DUI by taxi, limo and ride-sharing drivers with paying passengers in the vehicle (.04%); and
• Vehicle Code 23140 -- DUI by drivers under age 21 (.05%).

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is the Legal Definition of Vehicle Code 23152(b) Driving with a BAC of 0.08% or Higher?

Although there is a common perception that “a California DUI” is one crime, it typically encompasses two separate offenses:

1. driving under the influence of alcohol pursuant to Vehicle Code section 23152(a) VC, and
2. driving with a blood alcohol concentration (BAC) of 0.08% or higher per Vehicle Code section 23152(b) VC.²

This article focuses on the second offense.

Vehicle Code 23152(b) is the “per se” form of California DUI

The per se rule

California Vehicle Code 23152(b) VC makes it illegal to drive with a BAC of 0.08% or higher. This section is sometimes referred to as California’s DUI “per se” rule.

The law presumes that if your BAC is 0.08% or greater at the time of your blood or breath test, you are guilty of DUI, regardless of whether you were actually under the influence of alcohol.

In order to convict you of DUI under Vehicle Code 23152(b) VC, the prosecutor must prove the following two facts (otherwise known as “elements” of the crime”):

1. you drove a vehicle, an
2. at the time you drove, you had 0.08% or more BAC.³

These elements of the crime of DUI are not as straightforward as they seem. Let’s take a closer look at them to understand their legal definitions.

That you drove a vehicle

Whether or not you were “driving” is critical to a Vehicle Code section 23152(b) case. If an officer pulls you over for a traffic violation and personally observes you driving, this element is satisfied. However, there are a number of times when this may not be the case.

Sometimes people are arrested for DUI following an accident. Sometimes people are arrested for California DUI when they are just sitting in their car. Sometimes people are arrested while they are asleep in their car.

The key issue in a drunk driving case is whether or not the evidence can establish that you moved the car at least some distance.⁴

Example: Let’s say the cops find your car obstructing traffic.with the engine running.and that you are asleep behind the wheel. Given these facts, the police, judge, and jury could infer that you are the one who drove your car to that location.

Now let’s switch the facts. Let’s say that the cops find you asleep in your car in a parking spot on the street. Your lights are on, but the engine isn’t running. Given these facts, it’s not so easy to assume that you were driving.

Unlike the car that is blocking traffic in the first example, your car is legally parked, which means that you could have driven to that spot earlier in the night. It’s completely plausible that you parked, went out drinking, got back into your car to leave and realized that you needed to “sleep it off” before driving. Here, there isn’t enough evidence to infer that you were driving when the cops found you asleep--and thus not enough evidence for a DUI conviction.

You are only guilty of VC 23152(b) if you had a BAC of at least 0.08 when you were driving--not before or after.

At the time you were driving, you had a BAC of at least 0.08%

As Orange County DUI defense attorney John Murray explains,

“There is nothing illegal about having a BAC above 0.08% unless you do so while you are driving. This means that it doesn’t matter if you have a BAC of 0.08% before you drive or after you drive. The only relevant timeframe for legal purposes is while you are driving.”

Example: Let’s say that while you are driving, you hit a parked car. You leave your information on the car’s windshield in accordance with Vehicle Code 20002 VC California’s hit and run law.⁶

You drive home and begin drinking alcohol. While you are drinking your third glass of wine, the police come to question you about the accident. They conduct a DUI investigation and arrest you for driving under the influence. Once at the station, you submit to a breath test where you “blow” a 0.10%. You are subsequently arrested for Vehicle Code 23152(b) driving with a BAC of 0.08% or higher.

Given these facts, you would not be guilty of violating California’s DUI laws. Your 0.10% BAC did not reflect what your BAC was at the time you drove, it reflected your BAC at the time you submitted to the test.

Even though this type of situation is actually quite common, prosecutors nonetheless still typically go after these types of cases, assuming that you were actually DUI at the time of the accident.

This is simply one reason why it is so important to consult with an attorney who specializes in defending drunk driving cases, including VC 23152(b) cases. This is because judges instruct juries in DUI cases that if

1. a chemical blood or breath test was taken within three hours of the time you drove, and
2. the results were 0.08% or greater

the jury may (but is not required to) infer that you had a BAC of 0.08% or higher at the time of driving.⁷

That begs the question — is there any point to fighting a VC 23152(b) DUI charge if your BAC was at or above 0.08%?  And the answer is often times yes. Just because you have an alleged BAC that is above the legal limit does not mean that

1. you were above the legal limit at the time of driving, or
2. that the reported BAC result is accurate.

2. How Can I Fight VC 23152(b) Charges?

Depending on the exact circumstances of your DUI arrest, there are a variety of California DUI defenses that you can use to fight charges of Vehicle Code 23152(b) VC, California’s law against driving with a BAC of 0.08% or greater. Some of the most common include (but are not limited to):

Your BAC was below 0.08% at the time of driving

Although we’ve already touched on this concept above, it requires further discussion. This defense is by no means limited to the situation where you have been drinking after you were driving.

Perhaps more common is the situation where you were “on the rise”. Oftentimes, a person is still absorbing alcohol into his bloodstream at the time he/she is stopped for DUI. So his/her BAC actually rises during the period from the traffic stop until the blood or breath test.

This means that even if you “blow” a 0.10% at the station, your BAC may have only been a 0.06% at the time you drove (which is all that counts for legal purposes). As a result, a rising blood alcohol serves as a DUI defense that you can use to fight VC 23152(b) charges.

This is where a DUI defense expert comes into play. As a forensic toxicologist, he/she will calculate what your BAC probably would have been at the time of driving and will often be able to convince the jury that it was below the legal limit at that time.

Making sure that the jury understands how BAC relates to a California DUI is critical, since it’s the crux of Vehicle Code 23152(b) VC California’s law against driving with a BAC of 0.08% or greater.

The breath sample you provided was tainted

There are several factors in a Vehicle Code 23152(b) case that can result in DUI breath testing instruments producing inaccurately high BAC results. Examples include (but are not limited to):

Mouth alcohol

“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, or
• a variety of other factors.

When present, this residual alcohol causes breath tests to produce falsely high BAC readings. As a result, mouth alcohol is a common DUI defense.

GERD / Acid reflux

Similarly, Gastroesophageal Reflux Disease (GERD), heartburn and acid reflux are all medical conditions that serve as legitimate DUI defenses for fighting chrges of driving with an excessive BAC. These medical conditions trigger mouth alcohol which produces a falsely high BAC result on a breath testing instrument.

A number of different situations can lead to inaccurate BAC measures in your VC 23152(b) case.

Additional factors

A variety of additional factors can also affect the accuracy of your BAC results. Factors such as

• radio frequency interference “RFI” (radio transmission from cell phones, police cars, etc. can affect blood and/or breath testing instruments),
• temperature (of your breath and/or the outside temperature), and/or
• inherent error rates with DUI breath testing instruments

can all contribute to an unjustly inflated BAC, making it seem as though you were driving with a BAC of 0.08% or greater in violation of VC 23152(b) when, in fact, you were not.

The DUI breath testing instrument or machine wasn’t properly maintained or calibrated

Title 17 of the California Code of Regulations governs how California DUI breath and blood tests are supposed to be conducted in DUI cases.⁸ This means that any Title 17 violations could affect the outcome of your California DUI case.

These violations could be related to the

• maintenance,
• operation,
• collection, and/or
• storage

of those samples. If Title 17 is not strictly adhered to, your results may be excluded from evidence. When your California DUI attorney is successful in getting this type of evidence excluded, it will typically result in a dismissal of your case or, at the very least, in a reduction of your driving under the influence charges.

Your blood test was improperly collected and/or stored, or was passed outside the proper “chain of custody”

Title 17 also governs

• who draws your blood,
• how that person draws your blood,
• how your blood is collected, and
• how your blood is stored.

Your drunk driving defense attorney should diligently investigate each of these issues in an effort to find a Title 17 violation — and thus a defense that you can use to fight your charge of driving with a BAC over 0.08%.

The bottom line is this — NEVER assume that your California drunk driving case is indefensible. Experienced California DUI attorneys pride themselves on being able to scrutinize any DUI arrest to find the defenses that could lead to their client’s acquittal or a reduction in the charges.

California DUI DMV hearings

In addition, your DUI lawyer can represent you at a California DMV hearing related to your VC 23152(b) DUI charge. You or your DUI attorney must request a DMV hearing within ten (10) days of your California DUI arrest.

A California DUI DMV hearing provides you with an opportunity to postpone your driver’s license suspension.and an attempt to prevent it altogether. The DMV is virtually certain to side against you without skilled representation by a lawyer who specializes in California DUI defense.

3. What are the Penalties for VC 23152(b) DUI?

Penalties for a Vehicle Code 23152(b) VC conviction vary a great deal, depending on

1. whether you’re facing your first or subsequent DUI conviction,
2. whether you are being charged with a misdemeanor or felony DUI,
3. the facts of your specific case, and
4. your criminal history.

Misdemeanor penalties

Most first, second, and third driving under the influence cases are prosecuted as misdemeanors. Consequences of a misdemeanor DUI conviction include (but are not limited to):

• informal California DUI probation for three to five years,
• up to one year in a county jail,
• a minimum base fine of $390,⁹
• successful completion of a three to 30-month DUI school,¹⁰
• a six-month to three-year driver’s license suspension¹¹ (unless you initiate and win a California DMV DUI hearing; alternatively, the defendant may be able to continue driving anywhere if he/she installs an ignition interlock device in their cars),¹²
• installation of an ignition interlock device, which is mandatory for repeat-offenders, defendants with a BAC of at least .15%, and defendants who wish to continue driving during their license suspension,¹³ and
• insurance repercussions, given that California DUIs have an effect on car insurance policies.¹⁴

Felony DUI penalties

Drunk driving consequences typically rise to the felony level when you are involved in either (1) a DUI causing injury, or (2) have suffered your fourth or subsequent conviction in a ten-year period (which is referred to as a felony DUI based on prior convictions).

Penalties for California felony DUIs include (but are not limited to):

• formal probation,
• up to three years in a California state prison,
• a one or two-year license revocation (though it may be possible to continue driving with an IID), and
• designation by the California DMV as a habitual traffic offender (HTO).¹⁵

Aggravating factors

“Aggravating factors” are facts and circumstances involved in your VC 23152(b) case that increases your punishment.

The most common aggravating circumstances that are frequently seen in connection with California’s law against driving with a BAC of 0.08% or greater include (but are not limited to):

• driving with a BAC of 0.15% or more,¹⁶
• causing an accident,
• being charged with a California DUI speeding enhancement,¹⁷ and
• driving under the influence with a child in the car¹⁸ (which could alternatively be filed under Penal Code 273a California’s child endangerment law).¹⁹

DUI plea bargaining

Many times, your attorney may enter into plea negotiations with the prosecutor. DUI plea bargaining is beneficial to both sides. When successfully negotiated, a plea bargain allows the prosecutor to obtain a conviction and allows you to plead guilty to a reduced charge.

Some of the most frequent charges resulting from Vehicle Code 23152(b) VC charge reduction include:

• Vehicle Code 23103 per 23103.5 VC California’s “wet reckless” law,²⁰
• Vehicle Code 23103 VC California’s “dry reckless” law,²¹ and
• Vehicle Code 23109(c) VC California’s “exhibition of speed” law.²²

In certain very specific cases, you may be able to plea bargain to Vehicle Code 23221 VC drinking alcohol in a vehicle. This offense is charged when a driver was drinking alcohol in a vehicle on a public street (but the prosecutors are not able to prove that your BAC was over the legal limit under Vehicle Code 23152(b) VC). VC 23221 is only an infraction.²³

Finally, it’s important to understand that even if you’re convicted of Vehicle Code 23152(a) and VC 23152(b) VC, you will only be penalized once. The offenses “merge” for purposes of sentencing, which means that you are sentenced for the DUI as only one offense.²⁴

California DUI expungement

If you were sentenced to probation as a result of your DUI conviction, and you successfully completed your probation, you can try to get your conviction expunged.

In order to receive a California DUI expungement, you and your DUI defense attorney will need to petition the court in which you were convicted. An expungement will eliminate the effects of the “driving under the influence” conviction for some purposes (like most job applications) but not others.

Call us for help…

If you or loved one is charged with Vehicle Code 23152(b) driving with a BAC .08 or higher and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada DUI defense attorneys are available to answer any questions relating to Nevada’s DUI laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.²⁵

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