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DUI with BAC .08%

Vehicle Code 23152(b) VC – DUI Based on BAC .08% or Greater

Why is it an automatic DUI if your blood alcohol level is a .08% or greater? It's because of California Vehicle Code 23152(b) VC, which is the “per se” DUI law.

Vehicle Code 23152(b) VC – DUI Based on BAC .08% or Greater
Under California Vehicle Code 23152(b) VC, it's illegal to drive with a BAC of .08% or higher.

Simply put, this law makes it “per se” (automatically) illegal to drive a motor vehicle with a BAC at or above the legal limit of 0.08 percent, regardless of whether you are intoxicated or have impaired driving ability.

Suppose you are arrested for section 23152(b) VC DUI based on a BAC of .08% or greater.  In that case, police will also typically charge you with Vehicle Code 23152(a) VC driving under the influence of alcohol.

While these are separate crimes, they have the same penalties. However, if you are convicted of violating both laws, it will only count as one DUI on your criminal record. Unless you have a prior felony DUI or one causing injury, VC 23152(b) is usually filed as a misdemeanor. Multiple DUI’s will result in harsher penalties.

The whole concept of a pro se DUI is something that people don't get.  The legislature has determined that .08 is the legal cutoff where you cannot safely operate a motor vehicle if you're that high. 

So, it's assumed that you're a DUI if you blow a .08% or greater.  That's the problem you face when you're arrested and go to court, and they can prove that you're a .08% or greater.

What Does VC 23152(b) Prohibit?

VC 23152(b) forbids driving a vehicle with a BAC of at least 0.08%. As noted, it does not matter if you are driving safely without being impaired by alcohol. In other words, driving with an illegal BAC is, per se, illegal. There are only two elements of the crime a prosecutor must prove for a conviction, including the following:

  • You were driving a motor vehicle;
  • You had a BAC of 0.08% or greater.

To prove your blood alcohol content (BAC), prosecutors will rely on the breath test results or blood test you take following your arrest.

Notably, circumstantial evidence, such as swerving between lanes or slurred speech, is unnecessary to convict you. Sometimes, sober people have a BAC above the legal limit.

As noted, as a California DUI suspect, prosecutors will typically file two separate crimes against you, such as the following:

  • Vehicle Code 23152(a) – driving under the influence;
  • Vehicle Code 23152(b) - driving with a 0.08% or greater BAC.

This means there are two DUI charges in a single case, meaning they have two chances to convict you. Suppose you are convicted of drunk driving and driving with a blood-alcohol level of 0.08% or higher. In that case, both DUI offenses will be combined as one.

What are the Penalties?

In California, the standard penalties for a first-time misdemeanor DUI conviction include the following:

  • Three to five years of summary probation;
  • $390 to $1,000 in fines;
  • DUI school for three months;
  • Six-month driver's license suspension;
  • Possibly install an ignition interlock device (IID);
  • Attend a victim impact panel.

Suppose you are convicted of a second-time DUI. In that case, you will face the following penalties:

  • Three to five years of summary probation;
  • $390 to $1,000 in fines;
  • 96 hours to one year in jail, but you could get house arrest or a work program instead of jail;
  • 18-month or 30-month DUI school;
  • Two-year driver's license suspension;
  • Possibly install an ignition interlock device (IID);
  • Attend a victim impact panel.

Notably, your sentence could increase if there are aggravating circumstances, including the following:

  • Vehicle Code 23582 VC going over the speed limit while DUI,
  • Vehicle Code 23572 VC DUI with minor passenger and
  • Driving with a blood alcohol concentration of 0.15% or greater.

Can You Avoid Jail Time?

Usually, our DUI lawyer can persuade the judge to grant summary probation rather than jail time. Still, some mandatory jail sentences exist for second or more DUI convictions.

Misdemeanor summary probation is usually for three to five years and will include some or all of the following terms of probation:

  • Pay all the fines;
  • Pay victim restitution if ordered;
  • Complete a DUI school;
  • Do not drive with any amount of alcohol in your system;
  • Do not commit any new crimes;
  • Agree to take a breath or blood tests if you get another DUI arrest;
  • Attend Alcoholics Anonymous (AA) meetings, or
  • Attend Narcotics Anonymous (NA) meetings;
  • Participate in Mothers Against Drunk Driving (MADD) Victim Impact Program.

Suppose you violate these probation terms. In that case, you risk being ordered to serve jail time.

Can You Still Drive?

If you are arrested for DUI, your driver's license will be suspended unless you win the criminal case and DMV hearing, a separate administrative matter.

California DMV Hearing
The driver's license suspension is six months for a first-time misdemeanor DUI case in California.

However, in most cases, you can continue driving immediately if you install an IID in your vehicle.

The driver's license suspension is six months for a first-time misdemeanor DUI case in 10 years in California. If you lose the DMV administrative case but win the criminal case, the license suspension is for four months.

If you install the IID, a second DUI offense in 10 years will result in a one-year driver's license suspension. Otherwise, the suspension is two years. A third violation in 10 years will result in a two-year suspension.

After being arrested for a DUI, you have only ten days to request a DMV hearing to contest the license suspension. Police typically give you this notice of suspension once they confiscate your license after your DUI arrest. If you do not schedule a DMV hearing, the license suspension will take effect after the 10-day deadline.

What are the Best DUI Defenses?

The closer you are to the .08%, the better your chance of getting the case dismissed or a lesser charge. The reason for that is that the breath test is not 100% accurate, and even the prosecutor's expert will have to admit that there's an error rate of .02.  Thus, if you blew a .08%, you could have been a .06%, but you also have been a .10%. 

This means it's difficult for the prosecutor to prove you guilty if all you have is a .08%. However, the police know this problem and will do other things to solidify a DUI, such as making you perform field sobriety tests.

Best DUI Defenses in Los Angeles
Contact our DUI lawyers for a free case evaluation.

Some of the best legal defenses against DUI charges filed under VC 23152(b) include arguing that your BAC was below 0.08% when driving, your breath sample was tainted, the chemical testing equipment was compromised, and the police lacked probable cause.

Notably, you might still be absorbing alcohol into your bloodstream when you get pulled over on suspicion of DUI. If your BAC was legal while driving, it might have risen to illegal levels by the time you took the breath or blood test a few hours later.

This is the argument for rising blood alcohol.  Perhaps we can hire a forensic toxicologist to show that your BAC was most likely legal when you were pulled over.

Perhaps we can argue the testing equipment was compromised. Title 17 of the California Code of Regulations governs how DUI breath and blood tests are supposed to be performed.

Perhaps we can get BAC samples excluded from evidence if the police failed to adhere to the Title 17 standards regarding operation, maintenance, certification, collection, and storage, such as an improper chain of command. Perhaps we can persuade the DA to plea bargain down the DUI to lesser charges, such as the following:

  • Vehicle Code 23103.5 VC - wet reckless;
  • Vehicle Code 23103 VC - dry reckless; or
  • Vehicle Code 23109 VC - an exhibition of speed.

Contact our law firm for a free case evaluation and to discuss legal options. The Hedding Law Firm has offices in Los Angeles, CA.

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