Vehicle Code § 23152(a) is the California statute that prohibits driving under the influence of alcohol. You can get convicted even if your BAC is below 0.08%. The only factor is whether you are too intoxicated to operate a vehicle safely.
The language of the statute reads as follows:
23152. (a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. (b) 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.
If your breath- or blood test shows a BAC of 0.08% or higher, you will be charged with both:
However, even if the court finds you guilty of both offenses, it counts as a single DUI conviction.
In this article, our California DUI defense attorneys will answer the following key questions:
23152(a) VC forbids drunk driving, even if your blood alcohol level while driving is less than 0.08%.
Vehicle Code 23152(a) VC prohibits driving under the influence of alcohol – in short, drunk driving. This law applies when your physical or mental abilities are impaired to the extent that you can no longer drive as safely as a cautious, sober person. 1
Following every DUI arrest, you must submit to a breathalyzer or blood test to measure your BAC (blood alcohol content). 2 However, you can be convicted of DUI of alcohol even if the alcohol test results are within the legal limit of less than 0.08%.
Ultimately, California prosecutors have to prove beyond a reasonable doubt these two elements of the jury instructions:
Prosecutors typically rely on circumstantial evidence to show that you were driving impaired by alcohol. The police will typically report that you:
Prosecutors will usually charge you with two separate crimes:
Even if you violate both DUI laws, you will be punished for violating only one DUI law. In essence, the two DUI crimes melt into one. 4
Note you may be charged with only VC 23152(a) if:
Here at Shouse Law Group, we have represented thousands of people charged with driving under the influence of alcohol. In our experience, the following three DUI defenses to 23152(a) VC allegations are very effective with prosecutors, judges, and juries.
Sober people are responsible for the majority of traffic violations and road accidents. Perhaps your driving problems were caused by non-alcohol-related reasons such as:
If we can convince the prosecutors that they have insufficient evidence to prove impairment by alcohol specifically, they may agree to reduce the charge to a traffic infraction.
Note that being on drugs or in drug withdrawal is not an effective defense. Drugged driving (VC 23152(f)) or driving while addicted (VC 23152(c)) is a type of DUI and carries the same penalties as drunk driving.
There are many non-alcohol-related reasons why you would fail the walk-and-turn and one-leg stand tests. Examples include:
Should the case go to trial, we will ask the police officer to testify about all of the ways that you correctly performed the field sobriety tests. This line of questions is designed to show the court that you did far more things right than wrong.
Wrongdoing by law enforcement may be enough to get your DUI charge dismissed. We can ask the court to suppress any evidence the police may have obtained through their illegal actions.
Potential examples of police misconduct include:
Even if evidence suggests that you were driving while impaired by alcohol, one act of police misconduct could raise a reasonable doubt as to your guilt. 6
Police misconduct is a possible defense to drunk driving charges, even if you have prior DUIs.
A first, second, and third conviction of violating 23152(a) VC are usually misdemeanors. DUI punishments increase with each subsequent DUI, as the following chart shows. (Also, the specific sentence may vary by county.)
| Driving Under the Influence Charge | California Penalties* |
| First time DUI in 10 years | 3 to 5 years of summary probation (usually just 3 years); |
$390 to $1,000 in fines, plus penalty assessments;
6-month driver’s license suspension, though you can usually drive immediately if you install an ignition interlock device (IID) in your vehicles for 6 months;
48 hours to 6 months in jail (judges typically order no jail if they grant probation); and
Work release (depending on the county).
18-month or 30-month DUI school course;
$390 to $1,000 in fines, plus penalty assessments;
2-year driver’s license suspension, though you can usually drive immediately with an IID in your cars for 1 year; and
96 hours to 1 year in jail (the court may agree to grant house arrest or a work program instead of jail).
30-month DUI school course;
$390 to $1,000 in fines, plus penalty assessments;
3-year driver’s license suspension, though you can usually drive immediately with an IID in your cars for 2 years; and
120 days to 1 year in county jail (the minimum sentence is 30 days in jail if the judge grants probation and orders a 30-month DUI school course).
Depending on your case, prosecutors may be willing to plea bargain your DUI down to wet reckless (VC 23103.5) or dry reckless (VC 23103).
Note that a DUI conviction – or even a wet reckless conviction – can restrict you from traveling to Canada. 8
If you are convicted of a first offense of violating VC 23152(a), you will likely be eligible for informal probation instead of incarceration. However, some jail time is mandatory for subsequent offenses.
Also called summary probation, informal probation typically lasts three to five years. You may remain on probation as long as you follow all court orders. These include:
Depending on your case, the judge may impose the following conditions as well:
Violating the terms of probation can result in being remanded to jail. Learn more about California DUI probation violations. 10
Each successive DUI case carries a longer suspension of driving privileges.
Getting your license suspended is a standard California DUI penalty, though you can usually continue driving throughout this suspension as long as you install an IID in your vehicle.
The length of your license suspension period increases with each successive DUI, as this chart shows:
| Misdemeanor DUI Case in California | Length of License Suspension |
| First-time offense in 10 years | If you lose the criminal case, the suspension lasts 6 months. |
If you lose the DMV case but win the criminal case, the suspension lasts 4 months.
The only way you can avoid a driver’s license suspension following a California DUI arrest is to win both:
Note that you have only ten days to request a DMV hearing once the DMV gives you a notice of suspension/revocation. If you request the DMV hearing in time, you can continue driving pending the hearing; otherwise, the suspension will begin on the tenth day after the notice of suspension.
Also note that if you refuse to take a chemical test following your arrest, you will face a mandatory license suspension even if your DUI case gets dismissed.
Most insurance companies will increase premiums following a DUI. Though unless there was an accident, you do not have to tell your insurer about the DUI. 12 Your insurer might never find out about the DUI unless they run a background check.
In our experience, non-citizens convicted of a misdemeanor offense of driving under the influence of alcohol do not get deported. This is because misdemeanor DUIs involving alcohol usually do not qualify as crimes involving moral turpitude. 13
Once you complete your misdemeanor probation, you may petition the court to get your 23152(a) VC conviction expunged. 14 Employers may not use expunged DUI cases as a basis for not hiring or promoting you. 15
However, if you get charged with DUI again in the next 10 years, the expunged case will count as a prior. Therefore the new DUI charge will carry harsher penalties. 16
If you have a professional license and get arrested for DUI, you may have to report it to your licensing board – even if the D.A. drops the charges. So check with your licensing board’s bylaws or consult with a labor law attorney about what steps you need to take.
Depending on your job, the licensing board may react to your DUI case by either:
DUI cases tend to be taken more seriously by licensing boards if your occupation involves:
In any case, your licensing board should give you the opportunity to defend yourself at an administrative hearing and – if necessary – appeal any penalties.
For more information, refer to the following:
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant drove a vehicle;
AND
2. When (he/she) drove, the defendant was under the [combined] influence of (an alcoholic beverage/ [or] a drug/ [or] an alcoholic beverage and a drug).
