Vehicle Code 23152(b) – Driving With A BAC Of .08 Or More

This Article Explains California Vehicle Code 23152(b)

What is Driving With a Blood Alcohol Content of 0.08% or More?

California Vehicle Code Section 23152(b) punishes a defendant for driving while under the influence of alcohol with a blood alcohol content of 0.08% or higher.

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 influence1.

However, the presumption is not conclusive and can be challenged on various grounds that are discussed under defenses to this offense below.

Example

Mary proceeded to open a bottle of wine and consume about two glasses in her car while it was parked after work.  She remained parked with the engine running and never drove the car.

After observing Mary for several minutes, a police officer approached her and began questioning her about the clearly visible open bottle of wine in her car.  He further conducted a test that determined that Mary’s BAC was over 0.08%.

Nonetheless, Mary is not guilty of the offense, because one of the elements of the offense is that the defendant has to actually drive with a BAC of .08% or higher2.  Because Mary has not moved the car from its parking spot while under the influence of alcohol, she is not guilty of the offense.

How Does the Prosecutor Prove Your BAC was 0.08%?

To prove that you are guilty of this offense, a prosecutor has to prove the following facts or elements3:

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 slght6.  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 this Vehicle Code section.

Example

While on their way home, two friends needed to stop at a store and parked illegally in a driveway. The person in the passenger seat had been drinking and moved over to the driver’s seat in case the car had to be moved.

A police officer noticed the car parked illegally with the car engine running and went to investigate.  When he started talking to Mike sitting in the drivers seat now, he could smell a strong smell of alcohol on her breath.

When he conducted a test, his BAC level was above 0.08% and the police officer booked Mike for driving with a BAC of 0.08% or higher.  Because Mike never actually moved the car for any distance, and only his sober friend drove, he is not guilty of this offense.

How Can You Fight Charges Under California Vehicle Code Sections 23152(b)?

Your BAC was below 0.08% at the time of driving

As was discussed above, if your BAC level was not at least 0.08% or higher at the time you were driving, you are not guilty of this offense.  It does not matter that your BAC level rose to a higher level by the time you arrived to the police station to be tested, as this commonly happens because your body may have still been absorbing the alcohol as you drove.  An experienced criminal defense attorney who specializes in DUIs will bring in an expert to investigate the facts and to determine whether or not under the circumstances, your BAC level could have been above 0.08% at the time you were driving.

Inaccurate Blood Test Results:
lab technician testing blood

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

If any of these procedures are violated, the test results should be challenged as inaccurate, as the resulting BAC may be too high.

Incorrect Administration of the Chemical Test:

The chemical test machine has to be correctly calibrated and maintained.  If you can prove that the officers did not comply with these requirements, that the machine was faulty, or that the technician was not competent, you may be able to get the test results thrown out.

The result was inaccurate due to consumption of food/medication:

Most machines that test for alcohol in your breath will register chemical compounds in human breath as alcohol, including some types of food and drugs or medications that are legal for you to take while driving.  Eating food which causes acid reflux or a condition called Gerd, as well as taking such drugs within certain periods prior to the test may result in a false reading.

What Are The Penalties for Vehicle Code 23152(b)?

An offender of California’s DUI law may be facing the following punishments/penalties depending on whether he/she is a first time offender; whether the offense is charged as a misdemeanor or felony; the facts of the case; and the offender’s criminal history:

PenaltyMisdemeanorFelony
Fine$390-$1,000 + penalty assessments$390-$1,000 + penalty assessments
Probation3-5 years informal probation3-5 years formal probation
License Suspension or Revocation6 month – 3 years suspension4 year revocation
Ignition Interlock DeviceDepends on countyYes
Habitual Traffic Offender StatusNoYes
DUI ProgramYesYes
Jail Or PrisonMax of 6 months county jailMax of 3 years state prison

Enhancements & Aggravating Factors

Aggravating Factors:  The following 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.”

Excessive Blood Alcohol

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.

BAC Graph

  • DUI
  • Penalty Enhancement
Refusal To Take Chemical Testing

Pursuant to Vehicle Code Section 235787, a defendant can incur additional or enhanced terms of punishment if you refused to submit to chemical testing. If the officer asked you to take a chemical test and you did not respond than this may constitute a refusal8. However, the officer must admonish you in a manner that is clearly comprehensible to you9. If you were so intoxicated that you could not understand the officer than you can still be held to answer for refusing a chemical test10

Speeding
drunk man arrested

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 jail11.

Minor Passenger

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 under12.

Choosing an Attorney

If you have been arrested for a DUI and would like to learn more about what attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you are ready to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

Get Legal Help

Request A Free Consultation 818-351-9555 

Footnotes

  1. 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 []
  2. S]ection 23152 requires proof of volitional movement of a vehicle.” (Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768 [280 Cal.Rptr. 745, 809 P.2d]. []
  3. 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]. []
  4. Driving: Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768 [280 Cal.Rptr. 745, 809 P.2d 404] []
  5. 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. []
  6. 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]. []
  7. 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. []
  8. 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] []
  9. [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. []
  10. 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]. []
  11. Vehicle Code 23582 – (a) Any person who drives a vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, and in a manner prohibited by Section 23103 during the commission of a violation of Section 23152 or 23153 shall, in addition to the punishment prescribed for that person upon conviction of a violation of Section 23152 or 23153, be punished by an additional and consecutive term of 60 days in the county jail. (b) If the court grants probation or suspends the execution of sentence, it shall require as a condition of probation or suspension that the defendant serve 60 days in the county jail, in addition and consecutive to any other sentence prescribed by this chapter. (c) On a first conviction under this section, the court shall order the driver to participate in, and successfully complete, an alcohol or drug education and counseling program, or both an alcohol and a drug education and counseling program. Except in unusual cases where the interests of justice would be served, a finding making this section applicable to a defendant shall not be stricken pursuant to Section 1385 of the Penal Code or any other provision of law. If the court decides not to impose the additional and consecutive term, it shall specify on the court record the reasons for that order. (d) The additional term provided in this section shall not be imposed unless the facts of driving in a manner prohibited by Section 23103 and driving the vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, are charged in the accusatory pleading and admitted or found to be true by the trier of fact. A finding of driving in that manner shall be based on facts in addition to the fact that the defendant was driving while under the influence of alcohol, any drug, or both, or with a specified percentage of alcohol in the blood. []
  12. 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. []

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