DUI Defense VC 23152(a)(b)
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According to the California Department of Motor Vehicles (DMV), there were 1,187 alcohol-related crash fatalities and 124,141 arrests for driving under the influence in 2019 alone. The data is clear: Drunk driving is a major public health concern in California. However, that doesn’t mean that everyone accused of drunk driving is guilty.
In fact, out of the 121,141 Californians arrested for DUI in 2019, 36,098 were released without convictions—nearly one-third of those initially charged. As criminal defense attorneys in California, it’s our job to make sure that innocent people don’t suffer life-altering consequences for a crime they didn’t commit.
If you’ve been charged with a DUI in California, you need to mount an aggressive defense strategy to avoid suffering a range of penalties. This article will explain everything you need to know about DUI defense for vehicle code 23152(a)(b), including potential penalties, common legal defenses, and more.
Have you been charged with a DUI? Don’t make the mistake of hesitating to find an attorney. Contact our law office to explore your legal options with a compassionate attorney today.
California Vehicle Code Section 23152(a)
California Vehicle Code Section 23152(a) is the very first section outlined in Article 2 of the California Vehicle Code, which pertains to offenses involving alcohol and drugs. According to California Vehicle Code Section 23152(a):
“It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.”
The language in this statute is for the most part very clear: If you have been drinking to the point of being “under the influence,” you are not permitted to drive in California. Such statutes shouldn’t come as a surprise to American drivers who are quite familiar with the fact that driving under the influence is illegal in all states.
California Vehicle Code Section 23152(b)
California Vehicle Code Section 23152(a) is immediately followed by California Vehicle Code Section 23152(b), which outlines the blood alcohol levels (BACs) allowed under California law. According to this section:
“It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”
Furthermore, the statute specifically outlines the method by which law enforcement can assess whether or not a driver has a 0.08 percent BAC:
“In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.”
The term rebuttable presumption in this context means that if a judge learns that the driver in a DUI case was proven to have a BAC of 0.08 through chemical testing, they can presume that the driver was under the influence. However, if our defense team can prove that the test was faulty or otherwise prove that the driver was under the legal limit, then the attestation that the driver was under the influence becomes irrelevant unless proven through other means.
What Is Driving Under the Influence?
California Vehicle Code Section 23152(a)(b) clearly states that it is illegal to be under the influence while driving, but what exactly does the law mean by being “being under the influence”?
Typically speaking, “driving under the influence” means that you were driving in a reckless or dangerous manner that was directly influenced by the willful intoxication of drugs, alcohol, or a combination of both. There are several reasons a police officer may suspect that you are under the influence. Some common indicators include:
- Swerving over the line or median
- Stopping and slowing down repeatedly and without reason
- Falling asleep at the wheel
- Aggressive driving such as honking at other drivers or displaying obscene gestures
- Driving in the wrong direction
- Speeding
It’s important to note that you don’t necessarily need to be “driving” to be charged with driving under the influence. For example, let’s say that you drove to a bar to have a few drinks and then began driving home while over the legal BAC. You realized you were more intoxicated than you initially thought and decided to park in a nearby parking lot to call a cab.
While you wait for a cab, a police officer notices that you’re having trouble opening your car door and decides to breathalyze you. Even though you decided to do the responsible thing and call a cab, you can still be charged with drunk driving because you initially drove the vehicle to the parking lot vehicle under the influence.
Additionally, you don’t even have to be in a car to be charged with drunk driving. What matters is that you’re in a vehicle, and in California, bicycles, scooters, and even horses are categorized as vehicles, according to the California Department of Motor Vehicles (DMV).
Penalties for VC 23152(a)(b)
Penalties for a DUI can vary drastically, depending on if you are a first, second, third, or multiple offender. The severity of certain penalties depends on the level of alcohol in your system at the time of your arrest, whether you were on probation, whether you drove professionally, and whether or not someone was hurt in the incident.
Penalties for a First Offense
In most cases, the courts are more lenient with a first-time DUI offense. If you haven’t been convicted of a DUI in over 10 years or you have never been convicted of a DUI, you will typically face the following penalties:
- Fines. A first-time DUI conviction may result in fines, which can range from $390 to $1,000.
- Probation. Typically, individuals charged with a first-time DUI will be placed on probation for three to five years. If this happens, you will likely avoid jail.
- Jail time. While a first offense often does not involve significant jail time, there may be a mandatory minimum sentence, which can range from a few days to six months, depending on the circumstances.
- Alcohol education program. Completion of a state-approved DUI education program is usually required, the length of which depends on how high your BAC was at the time of your arrest.
In addition to these criminal penalties, you will also receive a license suspension for either six or 10 months, although the court will consider giving you a restricted license that allows you to drive between work and home. They may also give you the option to install an ignition interlock device (IID), which prevents you from driving a vehicle under the influence.
Penalties for a Second Offense
If you have been convicted of a DUI once in the past 10 years and are convicted a second time, a judge will likely issue you a combination of the following penalties:
- Jail time. A second DUI offense may result in mandatory jail time, typically ranging from 96 hours to one year.
- Fines. Fines for a second DUI conviction can range from $390 to $1,000, but additional penalties and assessments can significantly increase the total amount.
- Probation. Individuals convicted of a second DUI offense are typically placed on probation for a period of three to five years.
- Alcohol education program. A defendant’s alcohol education program requirement is increased to a minimum of 18 months and a maximum of 30 months for a second DUI.
License suspension also becomes more severe for second DUI offenses, typically lasting for two years. A second-time offender is still eligible for an IID, though it will be a much longer time requirement.
Penalties for a Third Offense
If an individual racks up three DUI charges in 10 years, they will receive the following penalties, barring any aggravators:
- Jail time. A third DUI conviction will result in a jail sentence ranging from 190 days to a year.
- Fines. The fines associated with a third DUI conviction are typically $390 to $1,000.
- Probation. Penalties may include three to five years on probation.
- Alcohol education program. You will be required to attend a 30-month alcohol education course for a third DUI conviction.
If you’re convicted of a third DUI offense, your license will be suspended for three years. You should also be aware that if you have a fourth offense in a 10-year period, you can be charged with either a misdemeanor or a felony.
Penalties for a Fourth and Subsequent Offenses
After a third DUI, every subsequent DUI conviction will result in the same range of penalties. However, each subsequent conviction will be met with harsher penalties. Being convicted of a fourth DUI in California will also mean that you can be sent to prison instead of jail if you’re charged with a felony. Here are the range of penalties you’ll be facing:
- Misdemeanor. If you’re charged with a misdemeanor, you will be facing 180 days to one year in county jail, $390 to $1,000 in fines, a mandatory 30-day alcohol education course, and a license suspension of four years.
- Felony. If you are charged with a felony, you will be facing either 16 months, two years, or three years in prison, $390 to $1,000 in fines, a mandatory 30-day alcohol education course, and a license suspension of four years.
Regardless of whether you’re charged with a felony or misdemeanor, any DUIs you’ve received in other states (excluding Georgia, Wisconsin, Massachusetts, Michigan, and Tennessee) will be combined with your DUIs in California. For example, if you’ve been convicted of three DUIs in Vermont within the last ten years and then are charged in violation of VC Section 23152(a) in California, your charge will be categorized as a 4th offense instead of a 1st offense.
Are you facing your fourth, fifth, or even your sixth DUI? A serious charge calls for a powerful criminal defense team, and Gressley & Donaldson is up to the challenge. Contact our law firm to schedule a case evaluation today.
Legal Defenses for VC 23152(a) Charges
As much as we’d like to believe that methods used to measure sobriety are foolproof, the reality is that many methods—including field sobriety tests—are simply not accurate 100% of the time. Like the rest of the population, members of law enforcement are human and capable of making mistakes.
As experienced DUI lawyers, we’ve had clients who were completely sober and still charged with DUIs due to these mistakes among other reasons. Below are a few of the arguments we will consider employing, depending your your specific circumstances.
Your Driving Was Not Affected by Alcohol
One potential defense against a DUI charge is asserting that your ability to drive was not impaired by alcohol. This defense may involve presenting evidence that challenges the prosecution’s claim that you were under the influence. Factors such as normal driving behavior, coherent communication with law enforcement, and the absence of erratic driving patterns can be used to argue that your alcohol consumption (if you consumed alcohol at all) did not substantially impact your driving skills.
Supporting evidence, such as witness testimonies or video footage, can strengthen this defense, and expert witnesses may be called upon to testify regarding your blood alcohol concentration and its potential effects on your specific driving abilities.
Additionally, individuals with certain disabilities may face challenges when interacting with law enforcement during a DUI stop, as their condition may be misinterpreted as signs of impairment. Disabilities such as mobility impairments, speech disorders, or neurological conditions can impact an individual’s ability to perform standard field sobriety tests or communicate clearly.
Law enforcement officers, who are not always adequately trained to recognize disabilities, might misinterpret physical or behavioral cues associated with a disability as indicators of alcohol or drug impairment. If you have a disability such as Parkinson’s disease or cerebral palsy, a misinterpretation of your disorder can lead to a wrongful suspicion of DUI, potentially resulting in unwarranted arrests or charges.
Field Sobriety Tests Didn’t Accurately Measure Your Level of Alcohol Impairment
Field sobriety tests are commonly used by law enforcement officers to assess a driver’s level of alcohol impairment during a DUI investigation. Police officers commonly ask drivers to walk in a straight line or recite the alphabet backward, which many critics argue are poor tools for accurately measuring alcohol impairment.
Various factors, such as environmental conditions, an individual’s physical condition, and nervousness, can significantly impact the results of these tests. Additionally, field sobriety tests often rely on a subjective evaluation by the arresting officer, introducing a level of interpretation that may not be entirely objective or standardized.
Unlike chemical tests such as breathalyzers, which measure blood alcohol concentration directly, field sobriety tests involve physical tasks that may be influenced by a range of factors unrelated to alcohol impairment. Many experts emphasize that completely sober individuals may still struggle with certain field sobriety tests due to factors like fatigue or medical conditions. As a result, our DUI defense attorneys may challenge the validity of field sobriety test evidence in court, arguing that these tests are unreliable indicators of a driver’s true level of impairment and should not be the sole basis for a DUI arrest or conviction.
Lastly, it’s important to note that field sobriety tests are completely mandatory in the State of California, and refusing to take one is not an admission of guilt. If you’ve been arrested based on refusal, it may also be evidence of a civil rights violation.
The Police Failed to Follow Proper Procedures
There are several ways a lawful police stop can turn into an unlawful DUI arrest. Law enforcement members make hundreds of stops every week, and it can be easy for a police officer to leave out one or many steps when making an arrest. Common mistakes include:
- Stopping a driver without reasonable suspicion
- Failing to use chemical tests to measure the driver’s sobriety
- Using unnecessary force
- Using intimidation to elicit a response that may resemble intoxication
- Failing to identify themself as a police officer
- Searching a vehicle without permission and without suspicion
Perhaps the biggest mistake a police officer can make when arresting a citizen for allegedly violating VC 23152(a)(b) is failing to mirandize them. Miranda rights are in place to protect members of the public from incriminating themselves through speech following an arrest. If the police officer fails to read the person their Miranda rights when arresting them, anything that they say will be inadmissible in court.
For example, let’s say that you were arrested for a DUI and the arresting officer asks you if you’ve been drinking and you say yes. If the officer fails to read you your Miranda rights when arresting you, your admission of guilt will be inadmissible in court. If no other evidence is presented to the judge, this can easily become a winning case, even though you admitted to drinking and driving.
Defending Against DUI VC 23152(b) Charges
As discussed throughout this guide, if your BAC is over 0.08% you will be considered under the influence, and will likely be arrested for a DUI. However, just because your BAC reads 0.08% doesn’t necessarily mean that you were under the influence. Over the years, our law firm has seen many instances in which breathalyzers and chemical tests do not measure with 100% accuracy.
Unfortunately, this can result in the arrest of innocent civilians, many of whom have never driven under the influence in their lives. In the sections below, we will outline some common defenses we’ve successfully used to defend our clients in VC 23152(b) cases.
Your BAC Was Below 0.08% at the Time of Driving
One potential DUI defense strategy revolves around challenging the accuracy of the BAC test results and arguing that the defendant’s BAC was below 0.08% at the time of driving.
To mount this defense, we may question the reliability of the chemical tests conducted, such as breathalyzer and blood tests, emphasizing factors that could lead to inaccurate readings. Issues such as improper administration of the test, calibration errors, or physiological factors affecting the individual’s metabolism may be explored to cast doubt on the validity of the BAC results.
Furthermore, our DUI attorneys may present evidence suggesting that alcohol absorption was still occurring at the time of driving, meaning that the defendant’s BAC could have been under the legal limit when they were operating the vehicle. Successfully arguing that the BAC was below 0.08% at the time of driving could potentially lead to a reduction in charges or an acquittal.
Your Breath Sample Was Tainted
In some cases, it may be worth challenging the accuracy and reliability of the breath sample provided by an individual accused of driving under the influence and asserting that the breath sample may have been tainted, leading to a false or inaccurate reading of the blood alcohol concentration.
Environmental factors such as residual mouth alcohol or certain substances in the individual’s surroundings may influence the breathalyzer readings. Our defense attorneys can investigate the circumstances surrounding your breath test, questioning whether the testing equipment was properly calibrated, and operated by trained personnel, and if any external factors may have tainted the breath sample.
It’s also worth noting that like the field sobriety tests employed by police officers to measure sobriety, it isn’t against the law to refuse breathalyzer tests in California. If you have a suspicion that the breathalyzer used on you may give a false reading, you are within your rights to rescind your consent to a test. However, if you are arrested, you may be instructed to take a chemical test at the station which you are not allowed to refuse. However, the results of this test may become inadmissible if there was no reason to give it to you in the first place.
The Chemical Testing Equipment Was Compromised
If the chemical testing equipment used for determining blood alcohol concentration (BAC) in a DUI case is compromised, it can significantly impact the validity of the test results and potentially become a point of defense. Compromised testing equipment raises concerns about the accuracy and reliability of the BAC readings, which can be pivotal evidence in a DUI case. Here are a few ways the compromise of testing equipment might affect the defense:
- Calibration records. You may be able to request examination records of the chemical testing equipment to ensure that it was regularly calibrated according to the manufacturer’s specifications. Any discrepancies or lapses in calibration could raise doubts about the accuracy of the BAC readings.
- Tampering or malfunctioning. If there are signs of tampering or technical issues, they could be used to challenge the reliability of the test results, suggesting that compromised equipment led to incorrect BAC readings.
- Exclusion of evidence. You may be able to have the test results excluded from evidence if you can demonstrate that the compromised equipment undermines the accuracy of the BAC readings. Excluding this evidence weakens the prosecution’s case against the accused.
These are just a few ways that the results from your chemical test can be compromised or misrepresented, and unfortunately, inaccurate results from DUI testing equipment are all too common. If you need help locating or accessing your test results or evidence that can prove your innocence in a VC 23152(b) case, it’s wise to contact a criminal defense attorney.
Police Had No Reasonable Suspicion or Probable Cause
Because the 4th Amendment grants us protection from unlawful search and seizure, law enforcement isn’t allowed to arrest someone on a hunch. As an American, your rights guarantee that police officers need to have reasonable suspicion or probable cause, such as seeing you commit a crime or about to commit a crime.
For example, if a police officer sees you swerving once or twice, they have the right to stop you for questioning or to give you a traffic ticket for reckless driving. However, they don’t have probable cause to arrest you for a DUI unless they realize you’re intoxicated after stopping you.
Let’s say an individual was driving under the influence but was not breaking any other laws. If the individual was pulled over without probable cause, they can’t be arrested for drinking and driving unless the officer physically saw them drinking while driving or they displayed other indications of intoxication, even though they were technically breaking the law.
We’ve seen countless situations in which our clients were arrested for a DUI without breaking any laws. In some cases, the police officer gained probable cause by conducting a field sobriety test after stopping them for speeding. As we’ve discussed, these tests have been proven to give mixed results, and after showing that no reasonable cause was provided in the police report, our clients have walked away without being labeled as drunk drivers.
DUI Defense FAQs
California criminal law is complex. If you have questions about your DUI charge, the best way to find answers is by speaking with a trusted lawyer. In the meantime, check out the answers to some of our most frequently asked questions.
• Can I get probation instead of jail in a VC 23152(a)(b) case?
Whether or not you can receive probation instead of jail time in a DUI case depends on various factors. The court considers the circumstances surrounding the DUI arrest, including the level of intoxication, prior DUI convictions, and any aggravating factors. If it is a first-time offense with no aggravating factors, there may be a higher likelihood of receiving probation rather than serving time in jail.
However, the decision ultimately rests with the judge, and they will assess the individual’s overall situation. Factors such as cooperation with law enforcement, completion of alcohol education programs, a commitment to rehabilitation, and above all, a solid defense compiled by a trusted DUI attorney, can positively influence the judge’s decision to grant probation.
• Will I lose my driver’s license if I’m arrested for drunk driving?
If you are arrested for drunk driving in California, you may face consequences related to your driver’s license. California has an administrative per se (APS) program, which means that if you are caught driving with a blood alcohol concentration of 0.08% or higher or you refuse a chemical test, the Department of Motor Vehicles may take administrative action against your license. This is separate from any criminal charges you may face in court.
The DMV can suspend your license, and the duration of the suspension depends on factors such as previous DUI convictions and whether you refused a chemical test. It’s crucial to act promptly after a DUI arrest to request a DMV hearing within 10 days, where you can challenge the license suspension.
Additionally, if you are convicted of DUI in court, you may face a license suspension or revocation as part of the criminal penalties. The duration of the suspension depends on factors like prior DUI convictions and the specific circumstances of the incident. In some cases, individuals may be eligible for a restricted license, allowing them to drive to necessary locations like work or school, but this usually comes with the requirement of installing an IID.
• Will my auto insurance rates go up if I’m arrested for a DUI?
In most cases, individuals charged with DUIs are considered high-risk drivers by insurance companies. As a result, your auto insurance rates will likely increase substantially after a DUI arrest. Insurance providers view DUI offenses as indicators of risky behavior and a higher likelihood of accidents. The increased rates may persist for several years, making it crucial to consider the long-term financial implications of a DUI conviction on your insurance premiums.
Additionally, in California, drivers convicted of a DUI may be required to obtain an SR-22 form, which is a certificate of financial responsibility. This form is typically mandated for high-risk drivers, and its submission is necessary for reinstating driving privileges. The requirement of an SR-22 can further complicate the insurance situation, as not all insurance companies offer coverage for individuals with this form, and those that do often charge significantly higher premiums.
• Are there immigration consequences for a VC 23152(a)(b) violation?
Non-U.S. citizens, including those with legal permanent residency or temporary visas, may face serious repercussions if convicted of DUI. Possible immigration consequences include visa revocation, denial of entry or re-entry into the United States, and deportation proceedings.
U.S. immigration authorities view DUI convictions as a violation of moral turpitude, and this can impact an individual’s immigration status. It is crucial for non-U.S. citizens facing DUI charges to seek legal counsel to understand the specific implications of their charges on immigration status.
• Can a DUI criminal record be expunged?
Yes, with a few exceptions. If you have both a DUI and a sex offense involving a minor on your criminal record, have served time in prison because of your DUI, or your DUI resulted in injuries or death, you will not be eligible to have your DUI expunged. In addition to meeting these requirements, you’ll also have to:
- Complete your alcohol education program requirements
- Complete the terms of your probation (even if your probation is due to another charge)
- Complete any community service requirements
- Submit to a drug test when asked
- Not have any outstanding warrants
If you meet all of these requirements and you have not had any subsequent convictions within a year after your DUI conviction, you will be eligible to have your charge expunged, regardless of if it was a felony or misdemeanor, and regardless of how many offenses you have.
• How does a DUI affect professional licenses?
Many licensing boards in the state, such as those for healthcare professionals, lawyers, and real estate agents, may view a DUI as a violation of professional conduct standards. The severity of the impact depends on the nature of the profession and the licensing board’s specific regulations.
For healthcare professionals, a DUI conviction may trigger disciplinary actions, ranging from probation to license suspension or revocation. The California Medical Board, for example, takes such matters seriously and evaluates each case individually. Similarly, lawyers in the state may face scrutiny from the State Bar of California, potentially leading to disciplinary measures. Real estate professionals, including agents and brokers, may find their licenses at risk, as the California Department of Real Estate considers criminal convictions when determining whether an individual is fit for licensure.
In addition to potential disciplinary actions, individuals with professional licenses may also encounter challenges in securing or maintaining liability insurance, as insurance providers often consider DUI convictions as factors affecting risk.
Gressley & Donaldson: Top DUI Defense Lawyers in California
Still have questions about your DUI charges? Our team of lawyers can offer clarity and long-term support as you navigate the legal challenges surrounding California’s DUI laws. So don’t wait—contact Gressley & Donaldson today to speak with a dedicated DUI lawyer.
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