Have You Been Charged with California DUI or Vehicle code (vc) 23152 (a) and (b)?

How to Keep Your Freedom and Your License After a DUI Arrest

Elements of DUI

For both VC § 23152 (a) and (b), the prosecutor will have to prove two elements:

  1. You drove a motor vehicle.
  2. You were under the influence of alcohol when you drove.
Driver going through DUI checkpoint

Driving Element of 23512

Generally, the first element is easily satisfied because an officer pulls someone over after watching them drive.  However, while the law requires the vehicle move, officers do not have to see the movement, and can infer movement from circumstantial evidence [1].

For example, you can be guilty of drunk driving if you are pulled over while driving, but you can also be guilty of drunk driving if you park on the side of the freeway and an officer finds you behind the wheel, with the keys in the ignition, and the engine is warm—even if your vehicle is not moving at the time.

Under The Influence Element of 23512

“Under the influence” means that your physical or mental abilities are impaired so that you can no longer drive as well as a normally cautious sober person [2].

The prosecutor can prove this in two ways:

  1. Under § 23152(b), known as the “per se” DUI, the law presumes you were “under the influence” if your blood alcohol content (“BAC”) is over the legal limit of 0.08%, regardless of whether you actually were under the influence.  
  2. Under § 23152(a), the “subjective” standard, the prosecutor will prove you were under the influence with the arresting officer’s observations about your appearance, behavior, driving pattern, and performance on field sobriety tests (“FST”), as well as any statements you made to the officer.  Importantly, you can be convicted of drunk driving even if you were under the legal BAC limit of 0.08% if your behavior shows you were intoxicated and there is any amount of alcohol detected.

For example, if your BAC was 0.04%, you would not be guilty of DUI under § 23152(b).  However, you could be found guilty of DUI under § 23152(a) if the officer testified that he saw you swerving while driving, smelled alcohol when he was speaking to you, and you stumbled repeatedly during FSTs.

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Penalties for Drunk Driving

The penalties for DUI depend on whether or not you have a prior DUI.

First Offense

No Prior DUIs

A first offense DUI is a misdemeanor, with penalties of three to five years of informal probation, from two days to up to six months in county jail, fines from $390 to $1,000, and up to nine months of court-approved drug or alcohol program [3].

Additionally, the DMV may suspend your driver’s license for up to ten months; however, many first time DUI offenders can obtain a “restricted license” to drive to school and work [4].

Second DUI

A second offense DUI is also a misdemeanor, with penalties of three to five years of summary probation, from ten days to up to one year in county jail (with a minimum sentence of 96 hours), fines from $390 to $1,000, and an 18 or 30 month court approved DUI program [5].

A second DUI results in a two year license suspension that is not eligible for a restricted license for 12 months [6].  

Third DUI

A third offense DUI is a misdemeanor, with penalties of three to five years of informal probation, up to one year in county jail (with a minimum sentence of 120 days), fines from $390 to $1,000, and a 30 month court approved DUI program [7].

A third DUI results in a three year driver’s license suspension, which cannot be converted to a restricted license for 18 months.  The DMV will also designate a third time offender as a “habitual traffic offender.”

Fourth DUI

A fourth offense DUI within a ten year period is usually a felony.  A felony DUI is punished by a prison sentence of sixteen months, two years, or three years, as well as $390 to $1,000 in fines, a four year driver’s license suspension, and habitual traffic offender designation [8].  If charged as a misdemeanor, there is a minimum of 180 days in county jail.

Your DUI will also be charged as a felony if you have a prior felony DUI.

Aggravating Factors

Even when charged as a misdemeanor, drunk driving offenses can be punished more severely if there are aggravating factors, such as injury to another [9], property damage, high BAC, speeding or other dangerous driving, drugs or alcohol in the vehicle, driving with a child in the vehicle, or unlicensed driving.

DUI With An Injury

If a person is injured as a result of driving under the influence, the offense will be charged under a separate provision of the Vehicle Code.

Penal Code Text

Vehicle Code § 23153 reads: