When arrested for a DUI there are two common charges that a prosecutor files against a defendant.
- The first is driving under the Influence of alcohol under Vehicle Code 23152(a), and
- The second is driving with a BAC of .08 or more under vehicle code 23152(b).
In this post, I am going to show you 7 ways a BAC of .08 or more could be wrong.
But first, watch this video to understand what the prosecutor needs to prove for a conviction.
Under California Vehicle Code 23152(b) it is a crime to drive a motor vehicle with a BAC of .08 or more1
How Do Police Determine Your BAC is .08 or Higher?
Police officers will determine if your blood alcohol concentration was above .08 in one of two ways.
There is a rebuttable presumption that if the person had 0.08 percent or more, by weight of alcohol in his or her blood at the time of driving, that the person is guilty of DUI, whether or not the person was actually driving under the influence2.
However, the presumption is not conclusive and can be challenged on various grounds.
Lets start with the DUI breath test…….
There a number of ways that a breath test could have provided a false reading or your BAC was not .08 or higher at the actual time of driving rather than the time the test was taken.
- Your BAC was rising when you took the breath or blood test.
- You had mouth alcohol which gave a false reading.
- You were suffering from GERD or acid reflux when you took the test which gave a falsely high reading, or
- The breath testing machine was not properly calibrated.
- You were a passenger and not the driver of the vehicle.
Your BAC Was Still Rising
Let me give you an example of a situation where your BAC at the time of driving could have been lower than the legal limit.
After being pulled over for a DUI and taking some field sobriety tests a defendant blows a .08 BAC and is immediately arrested for DUI.
The defendant takes another DUI breath test at the police station which registers a .095 BAC.
In this scenerio you can clearly see that the defendants blood alcohol concentration was continuing to rise which would show that at the actual time of driving the defendant was even lower than the .08 original breath test.
This commonly happens because your body may have still been absorbing the alcohol as you drove.
Estimate Your BAC With Our Blood Alcohol Calculator
The Result was Inaccurate Due to Mouth Alcohol or GERD:
The result of the chemical test was based on mouth alcohol rather than deep lung air which would signify a true blood alcohol concentration.
A person with a condition such as GERD or acid reflux could potentially always have some amount of alcohol coming up from their stomach which may result in a falsely high reading.
To prove this an expert would have to be brought in for the defense and testify on behalf of the defendant.
The Breathalyzer Was Incorrectly Maintained
The chemical test machine has to be correctly calibrated and maintained.
If you can prove that the officers did not comply with the
- DUI breath testing requirements,
- That the machine was faulty, or
- That the technician was not competent, you may be able to get the test results thrown out.
You Were Not Driving The Car
To prove that you are guilty of violating vehicle code 23152(b), a prosecutor has to prove the following facts or elements3:
Was There Evidence of Your Driving?
To prove that you violated this offense, a prosecutor has to provide evidence that shows that you were actually “driving” with a BAC of 0.08% or higher.
This requires proving that you moved the car any distance no matter how slight6.
If the defendant was merely sleeping in the car while the car was parked, or if he/she was at the wheel while a friend ran into a store, he/she did not violate VC 23152(b).
For more on this topic see my article on the DUI “no driving” defense.
Now lets focus on a blood test…….
California’s Code of Regulations Title 17 governs the performance of blood and breath tests.
Title 17 requires that when a DUI blood test is conducted the following procedures have to be followed:
- The blood should be collected using sterile equipment
- The draw site must be sterilized using a non-alcoholic non-volatile cleaning agent
- The draw should be performed only by authorized personnel such as a specially trained technician
- There should be a sufficient amount of coagulant and preservative in the vile
- The blood should be mixed with the coagulant and preservative
- The blood should be stored properly in a clean dry contained that is closed with an inert stopper
How Do You Know If Title 17 Procedures Were Not Followed?
An investigation into the crime lab where the blood test was performed can be conducted.
Additionally, is you suspect the Blood test result is incorrect our firm can submit a DUI blood split order and have your blood independently tested from a different lab.
If any of these procedures are violated, the test results should be challenged as inaccurate, as the resulting BAC may be too high.
|Fine||$390-$1,000 + penalty assessments||$390-$1,000 + penalty assessments|
|Probation||3-5 years informal probation||3-5 years formal probation|
|License Suspension or Revocation||6 month – 3 years suspension7||4 year revocation|
|Ignition Interlock Device||Depends on county||Yes|
|Habitual Traffic Offender Status||No||Yes|
|DUI Program||3-30 Months DUI School||Yes|
|Jail Or Prison||Max of 6 months county jail||Max of 3 years state prison|
Additionally, there will be costs for SR-22 Insurance which will be required as a DUI offender.
Can you remove a violation of VC 23152(b) from your record?
After completing all requirements of sentencing you may be eligible to expunge a DUI conviction depending on the circumstances. However, expunging your conviction will not remove priorability for any future DUI’s.
Aggravating Factors: The following 4 factors, if present in addition to a violation of the offense Vehicle Code 23152(b), will cause a defendant to incur additional or enhanced terms of punishment.
These factors are called “aggravating factors.”
- BAC .15 or higher
- Refusal ff the chemical test
- Excessive Speeding or reckless driving
- Minor under 14 years of age in the vehicle
Pursuant to Vehicle Code Section 23578 — Excessive Blood Alcohol —
If a person is convicted of a violation of Section 23152 or vehicle code 23153 dui causing injury, the court will also consider a concentration of alcohol in the person’s blood of:
- 0.15 % or more, by weight, or
- the refusal of the person to take a chemical test,
As a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.
- Penalty Enhancement
- Penalty Enhancement
Pursuant to Vehicle Code Section 235788, a defendant can incur additional or enhanced terms of punishment if you refused to submit to chemical testing.
What if I Could Not Understand the Officer?
If the officer asked you to take a chemical test and you did not respond than this may constitute a refusal9. However, the officer must admonish you in a manner that is clearly comprehensible to you10.
If you were so intoxicated that you could not understand the officer then you can still be held to answer for refusing a chemical test11.
Under Vehicle Code Section 23582, anyone who drives a car
- 30 or more miles per hour over the maximum, or posted speed limit on a freeway, or
- 20 or more miles per hour over the maximum, or posted speed limit on any other street or highway,
While also violating Sections 23152 or 23153 will, in addition to the punishment given upon conviction of a violation of Sections 23152 or 23153.
Be punished by an additional and consecutive term of 60 days in the county jail12.
Under Vehicle Code Section 23572, if you are convicted of Driving With a BAC of 0.08% or More under Vehicle Code Section 23152 and
- You have a minor riding with you in the car,
The court will impose additional penalties, based on which section of the Vehicle Code the original offense is punishable under13.
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- California Vehicle Code 23152(b) VC [↩]
- 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 [↩]
- Elements; California Vehicle Code §23152(b) – Driving With a BAC of 0.08%: “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. For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. 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.” Burg v. Municipal Court (1983) 35 Cal.3d 257, 265–266 [198 Cal.Rptr. 145, 673 P.2d 732]. [↩]
- Driving: Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768 [280 Cal.Rptr. 745, 809 P.2d 404] [↩]
- The Vehicle Code defines “vehicle” as a device by which any person or property may be propelled, moved, or drawn upon a highway that is not powered exclusively by human power. California Vehicle Code Section 670 – Vehicle: “A ‘vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks. [↩]
- Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1029 [229 Cal.Rptr. 310]; Henslee v. Dept. of Motor Vehicles (1985) 168 Cal.App.3d 445, 450–453 [214 Cal.Rptr. 249]. [↩]
- California Vehicle code sections 13350 [↩]
- Vehicle Code 23578 – In addition to any other provision of this code, if a person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation. [↩]
- Silence in Response to Request May Constitute Refusal. Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 73, 82–84 [109 Cal.Rptr.3d 906] [↩]
- [T]he burden is properly placed on the officer to give the warning required by section 13353 in a manner comprehensible to the driver.” (Thompson v. Dept. of Motor Vehicles (1980) 107 Cal.App.3d 354, 363 [165 Cal.Rptr. 626].) Thus, in Thompson, supra, 107 Cal.App.3d at p. 363, the court set aside the defendant’s license suspension because radio traffic prevented the defendant from hearing the admonition. [↩]
- Where the defendant’s own “obstreperous conduct . . .prevented the officer from completing the admonition,” or where the defendant’s own intoxication prevented him or her from understanding the admonition, the defendant may be held responsible for refusing to submit to a chemical test: Morphew v. Dept. of Motor Vehicles (1982) 137 Cal.App.3d 738, 743–744 [188 Cal.Rptr. 126]; Bush v. Bright (1968) 264 Cal.App.2d 788, 792 [71 Cal.Rptr. 123]. [↩]
- California Vehicle Code 23582 [↩]
- Vehicle Code 23572. – (a) If any person is convicted of a violation of Section 23152 and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed: (1) If the person is convicted of a violation of Section 23152 punishable under Section 23536, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part of which shall be stayed. (2) If a person is convicted of a violation of Section 23152 punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed. (3) If a person is convicted of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed. (4) If a person is convicted of a violation of Section 23152 which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed. (b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven. (c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident. [↩]
- We handle cases of VC 23152 (b) in Santa Clarita Valley, Antelope Valley, San Fernando Valley, San Gabriel Valley, Southern California, Los Angeles County, Santa Monica, Hollywood, Glendale, Sherman Oaks, Encino, Studio City, Burbank, Van Nuys, Chatsworth, San Fernando, Santa Clarita, Valencia, Palmdale, Lancaster, Pasadena, Alhambra, Malibu, Ventura County, Santa Barbara County, Orange County, San Bernadino County [↩]