Vehicle Code 23152(a) VC: A Former Prosecutor Explains This DUI Law

In this post, I will explain California Vehicle Code 23152(a) VC which makes it a crime for a person who is under the influence of any alcoholic beverage to drive a vehicle¹.

Let’s get started…

But first, watch this short video to understand how you can be charged with a DUI even if your BAC is below .08%.

What Happens At Arrest For Vehicle Code 23152(a) VC?

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

• Vehicle Code section 23152(a) VC: states that it is a misdemeanor to drive² under the influence of alcohol³ and/or drugs⁴.

Note that a valid medical prescription for drugs is not a defense⁵

• Vehicle Code section 23152(b) VC states that it is a misdemeanor to drive with .08% or more of alcohol in your blood⁶.

If you are driving with a BAC over .08% you will likely be charged with a violation of both Vehicle Code sections.

When someone is arrested for DUI they are provided with a citation that lists the vehicle code or codes for which they are being arrested such as 23152(a) VC or sometimes the sheriff’s department lists 23152(a) CVC.

Prior to the arrest, the officer has to establish that the defendant was driving under the influence.

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:

Lets take a look at each test individually

The Preliminary Alcohol Screening Test (PAS)

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 concentration⁷.

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.

The ECIR 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.

The Blood Exam

A 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.

Watch this short video to see why I recommend taking the blood test.

Note About Blood Tests:

This exam may raise issues in regards to the amount of time between the arrest and when the sample was collected⁸, care of the sample, training of the person testing the sample, and the maintenance and condition of the equipment used.

What Happens After The BAC Tests If They Are Over The Legal Limit?

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.

What Happens After An Arrest?

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

Being cited for a violation of Vehicle Code §23152(a) VC: Driving Under the Influence⁹ triggers two (2) proceedings against you:

• DMV Hearing
• Criminal Proceeding

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

In most circumstances where DMV orders an action suspending 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.

Watch this video if you want to know more about winning a DMV hearing.

Provided there is nothing else holding your license, 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 revoked for a period of one year for a first DUI with no restricted license option. You will, however, be entitled to a DMV hearing.

About The Hearing

• The hearing can take place via telephone or in person.
• The hearing is held before a Driver Safety Hearing Officer of the department.⁶
• The hearing is recorded⁶

At The Hearing

• The driver is informed of the legal grounds for the action.⁶
• 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.⁶

Legal Standard Of The Hearing

• Were you driving?
• Were you lawfully pulled over? (i.e, was there probable cause to stop your vehicle)
• Was your B.A.C. at .08 or higher?

What Happens If You 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.

What Happens If You Lose The DMV Hearing?

Criminal Proceedings For California Vehicle Code 23152(a) VC

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.

What Would Make A DUI A 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 influence¹⁰, 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 convictions¹¹ and/or a prior felony DUI conviction.

What Are The Penalties For Violating 23152(a) VC?

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

Penalty	Misdemeanor	Felony
Fine	$1400 -$3,000	Up to $10,000 + penalty assessments
Probation	1-3 years summary probation	3-5 years formal probation
Alcohol Program	3-9 months	3-30 month alcohol program
AA/MADD Classes , Victim Impact Program	As determined by the court	As determined by the court
Ignition Interlock Device	Yes in pilot counties	Must be installed in pilot counties
Community Service/Labor	Amount determined by the court	As determined by the court
Restitution To Any Victims	An amount determined by the court	As determined by the level of damage cause to the 3rd party
Jail or Prison	0-6 months county jail	6 months – 3 years state prison

What If The DUI Involved A Serious Injury and/or Death?

• It may be a “strikeable” offense
• It may be eligible for a state prison sentence
• If you kill someone while driving under the influence, you can also be charged with PC 192(a) vehicular manslaughter or PC 187- Watson murder.

What Are The Consequences Of A Felony Conviction?

• Lose the right to possess a 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

1. California Vehicle Code 23152(a) VC:  It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. [↩]
2. Driving: Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768 [280 Cal.Rptr. 745, 809 P.2d 404] [↩]
3. Alcoholic Beverage Defined Veh. Code, § 109; Bus. & Prof. Code, § 23004 [↩]
4. Drug Defined Veh. Code, § 312. [↩]
5. Legal Entitlement to Use Drug Not a Defense Veh. Code, § 23630 [↩]
6. ID [↩] [↩] [↩] [↩] [↩] [↩]
7. 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]. [↩]
8. 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 [↩]
9. California Vehicle Code 23152(a) vc – It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle [↩]
10. 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] [↩]
11. Prior Convictions People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal. Rptr. 170] [↩]