It is a misdemeanor to drive under the influence of alcohol and/or drugs in California. But there are ways to beat the charge…
California Vehicle Code 23152 VC sets forth four standards for impaired driving:
- Vehicle Code 23152a – driving “under the influence” of alcohol,
- Vehicle Code 23152b – driving with a BAC of .08% or greater,
- Vehicle Code 23152e — driving “under the influence” of drugs, and
- Vehicle Code 23152f — driving under the combined influence of alcohol and drugs.
1. What is the Difference Between VC 23152a and VC 23152b?
Because of the difficulty of proving impairment in every case of alleged drunk driving, most states set an arbitrary legal maximum for a driver’s blood alcohol content (BAC). In California, this BAC level is .08%. It is set forth in Vehicle Code section 23152b.
Violation of VC 23152b is known as a “per se” DUI. It is an objective DUI standard. Some people will not actually be “under the influence” at a BAC of .08% or higher. We sometimes say that these people “can hold their liquor.” Nevertheless, under VC 23152b, they may be deemed guilty of drunk driving.
Other people, however, have greater sensitivity to alcohol. We sometimes informally refer to such people as being “lightweights.” However, even people who can normally tolerate liquor well may be “under the influence” at less than .08% on any given day.
California Vehicle Code 23152a exists, therefore, to punish people who drive impaired — even if their BAC is under the “per se” legal limit of .08%. It is a subjective standard.
2. Can I be Charged for DUI Under Both VC 23152a and VC 23152b?
You can be charged under either or both of VC 23152a and VC 23152b. Generally, if you are arrested for DUI and your chemical tests reveal a BAC of .08% or higher, you will be charged under both Vehicle Code 23152a and 23152b.
These two California DUI offenses are equally serious. Both carry the same penalties and consequences. If, however, you get convicted of both charges, they “merge” for sentencing — meaning it only counts as one DUI conviction, not two.
3. How Does Vehicle Code 23152a Define “Under the Influence”?
A person is “under the influence” for purposes of Vehicle Code 23152a if:
- as a result of drinking or consuming alcohol,
- the person’s mental or physical abilities are impaired to such a degree,
- that he/she can no long drive with the caution of a sober person, using ordinary care, under similar circumstances.
4. How Does the Prosecution Prove I Drove Under the Influence?
In a prosecution under Vehicle Code 23152a, the state will usually attempt to prove your intoxication through evidence of:
- bad driving,
- the smell of alcohol on the breath or in the car,
- the presence of alcohol in the car,
- bloodshot eyes,
- slurred speech,
- flushed face,
- unsteady balance,
- poor performance on field sobriety tests,
- results of blood or breath tests,
- the arresting officer’s opinion that the driver was under influence, and/or
- testimony from the prosecutor’s “expert” witness — typically a forensic toxicologist from a local law enforcement agency.
5. How do I Defend Against a Charge of DUI Under VC 23152a?
Legal defenses to charges of DUI under California Vehicle Code 23152a include:
- your driving wasn’t impaired,
- your traffic stop and/or DUI arrest wasn’t legal,
- your impairment wasn’t caused by alcohol,
- field sobriety tests don’t accurately measure impairment,
- DUI blood test problems or DUI breath test problems, and
- failure by law enforcement to follow proper procedures.
Often you can also avoid a conviction under 23152a by reducing DUI charges to a lesser offense through a plea bargain.
6. What are the Penalties for Violating California Vehicle Code 23152a?
If it is your first DUI offense, penalties for a violation of VC 23152a can include:
- informal (“summary”) probation for three to five years,
- between 96 hours and six (6) months in county jail,
- a fine of between $390 and $1,000 (plus court assessments),
- required participation in a court-approved California DUI school,
- a California DMV-imposed minimum six-month California driver’s license suspension, and
- ancillary penalties (such as an increase in your auto insurance premiums, and restrictions on your ability to travel to Canada).
7. Aggravating factors
Your sentence for violating California Vehicle Code 23152a might also be increased if:
- you are charged with a California DUI speeding enhancement,
- you have a child in the car while you are DUI,
- your BAC was 0.15% or higher, or
- your DUI causes injury to — or your DUI results in death of — someone else.
Most Vehicle Code 23152(a) VC cases do not go to trial. They are resolved during DUI plea bargaining negotiations for a lesser charge.
Our Southern California DUI lawyers have a great deal of experience in keeping people accused of DUI out of jail — whether by defending them at trial, or helping them negotiate a plea bargain.
We represent clients accused of DUI throughout Los Angeles, Orange, Riverside, San Bernardino and Ventura Counties. An initial consultation is 100% free. Contact us today to discuss your case in confidence.