Vehicle Code 23152(a): A Former Prosecutor Explains The Law

What Happens At Arrest For VC 23152(a)

Measurement of Intoxication:

In addition to the Field Sobriety Tests (i.e,walking in a straight line, standing on one foot, etc.), the officer likely conducted an exam to evaluate your Blood Alcohol Content (BAC). There are three possible methods to test your BAC:

evidence
  • Pas Exam
  • EC/IR Exam
  • Blood Test
PAS Exam

Commonly known as the “breathalyzer exam,” the preliminary alcohol-screening (PAS) test is used by law enforcement to measure your blood alcohol level. The PAS device is a hand-held breath-testing unit that gives an instant and accurate measure of your blood alcohol concentration1.

This test can be influenced by various internal factors, such as your last meal, certain medications, and certain medical conditions such as acid reflux. With the right evidence and the right attorney, the results of this test can be significantly called into question.

EC/IR Exam

The evidentiary breath test is an intoximeter exam that you take at the jail or police station.  If you took this breath test, the officer will likely include a printout in the police report with your breath alcohol results on it.

Note:

This test is typically more reliable, and depending on your level of intoxication, is often lower than the results on the PAS exam.

Blood Exam

blood test should be conducted at a health care facility, and is even more reliable than breath testing. This test is not mandatory for officers to conduct, but rather, is an elected option.

Note:

This exam may raise issues in regards to the amount of time between the arrest and when the sample was collected2, care of the sample, training of the person testing the sample, and the maintenance and condition of the equipment used.

 Effect On Your License:

After your breath test (or other chemical test), the officer will complete a DMV form. The officer will take away your license, and issue your “temporary license” (a pink sheet of paper).  The form is called the “Administrative Per Se Suspension/ Revocation Order and Temporary License.”  Your temporary license has full driving privileges and will expire after 30 days.

After your arrest
You have 10 days to save your license and request a DMV Hearing

Being cited for a violation of Vehicle Code §23152(a) Driving Under the Influence triggers two (2) proceedings against you:

  • DMV Hearing
  • Criminal Proceeding

DMV Hearing (also known as an “APS” hearing)

In most circumstances where DMV orders a discretionary action against a person’s driving privilege, that person has the right to a hearing before the department to contest the action and review the evidence supporting it. You are allowed to continue driving through the outcome of your hearing. Important note, if you refuse to take a chemical test your license will be automatically revoked for a period of one year for a first DUI. You will not be entitled to a DMV hearing.

About The Hearing
At The Hearing
  • The driver is informed of the legal grounds for the action.5
  • The driver has the opportunity to review and challenge the evidence of the department, to present evidence, witnesses and testimony to persuade the department to modify or rescind the action.6
  • Following the hearing, the Driver Safety Hearing Officer will make a decision to uphold (sustain), modify, or rescind (set aside) the DMV action.7
Legal Standard Of The Hearing
Win the DMV Hearing

If you win your DMV Hearing: The Driver Safety Hearing Officer will set aside the DMV action and your license will be restored as valid.

Lose the Hearing

 If you lose your DMV Hearing:

First 30 Days

Your license will be revoked for a period determined by the Hearing Officer,  usually a period of 30 days for 1st time DUI offenders, where you cannot drive anywhere at anytime.

1-5 Months After

At the end of that time period, your license will be reinstated with restriction.

Note:  Restrictions typically depend on the requirements of your conviction, but you will likely be allowed to ONLY drive to and from your alcohol program and from home to work/school for a period as designated (usually a period of 4-6 months for First time DUI offenders)

6-12 Months After

At the conclusion of the five month restricted period, depending on the requirements of your conviction, you will likely be allowed to drive anywhere for the following five months so long as your vehicle, or any vehicle that you drive, is equipped with an Ignition Interlock Device (IID).

After 12 months

Once the suspension period has ended, you will be able to obtain your regular driver’s license by paying a fee of $125.00 to the DMV and filing proof of financial responsibility, provided by your car insurance company usually with a Form SR-22. 

Criminal Proceedings For California Vehicle Code 23152(a)

Depending on numerous circumstances regarding your intoxication and your driving, including the involvement of a collision, the extent of injuries sustained by passengers, or other third parties, whether a hit-and-run was a factor, your DUI can be classified as either a misdemeanor (standard) or, in rare and egregious cases, a felony

Misdemeanor

California has two standard drunk driving laws, found in Vehicle Code section 23152, sections (a) and (b).

  • Vehicle Code section 23152(a) states that it is a misdemeanor to drive8 under the influence of alcohol9 and/or drugs10. Note that a valid medical prescription for drugs is not a defense11
  • Vehicle Code section 23152(b) states that it is a misdemeanor to drive with .08% or more of alcohol in your blood.12 If you are driving with a BAC over .08% you will likely be charged with a violation of both Vehicle Code sections.
Felony

Assuming you are not a repeat offender, three requirements must be met for your DUI to be treated as a felony:

  1. While under the influence13, the driver must commit a traffic violation, such as running a red light or speeding;
  2. The driver must have caused injury or death to a third-party;
  3. That injury must have been caused by the violation in question.  Your DUI can also be increased to a felony if you have multiple prior DUI convictions14 and/or a prior felony DUI conviction.
Penalties

Any combination of the following are possible consequences for vehicle code 23152(a)

PenaltyMisdemeanorFelony
Fine $1400 -$3,000Up to $10,000 + penalty assessments
Probation1-3 years summary probation3-5 years formal probation
Alcohol Program3-9 months 3-30 month alcohol program
AA/MADD Classes , Victim Impact ProgramAs determined by the courtAs determined by the court
Ignition Interlock DeviceYes in pilot countiesMust be installed in pilot counties
Community Service/LaborAmount determined by the courtAs determined by the court
Restitution To Any VictimsAn amount determined by the courtAs determined by the level of damage cause to the 3rd party
Jail or Prison0-6 months county jail6 months – 3 years state prison
If Serious Injury and/or Death

May be a “strikeable” offense, may be eligible for state prison sentence. If you kill someone while driving under the influence, you can also be charged with vehicular manslaughter or murder.

Consequences of a Felony Conviction

Lose right to possess firearm, lose right to vote, lose right to sit on a jury, lose right to hold public office, must provide law enforcement with DNA sample, may lead to immigration consequences, as a drug abuser, if you are a noncitizen.

Request A Free Consultation 818-351-9555 

Footnotes

  1. The results of a preliminary alcohol screening (PAS) test “are admissible upon a showing of either compliance with title 17 or the foundational elements of (1)properly functioning equipment, (2) a properly administered test, and (3) a qualified operator . . . .” (People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854, 49 P.3d 203]. []
  2. Mandatory Presumption Unconstitutional Unless Instructed as Permissive Inference People v. Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501,658 P.2d 1302 []
  3. ID []
  4. ID []
  5. ID []
  6. ID []
  7. ID []
  8. Driving: Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768 [280 Cal.Rptr. 745, 809 P.2d 404] []
  9. Alcoholic Beverage Defined Veh. Code, § 109; Bus. & Prof. Code, § 23004 []
  10. Drug Defined Veh. Code, § 312. []
  11. Legal Entitlement to Use Drug Not a Defense Veh. Code, § 23630 []
  12. ID []
  13. Under the Influence Defined People v. Schoonover (1970) 5 Cal.App.3d 101, 105–107 [85 Cal.Rptr. 69]; People v. Enriquez (1996) 42 Cal.App.4th 661, 665–666 [49 Cal.rptr.2d 710] []
  14. Prior Convictions People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal. Rptr. 170] []

Related Posts