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 influence. However, the presumption is not conclusive and can be challenged on various grounds that are discussed under defenses to this offense below.
Mary had a rough day at work and decided to take a bottle of wine into her car during lunch. Mary did not have a designated parking spot because she was temping at her current job. Therefore, her car was parked on the street and visible to the public. She turned on the engine and ran the AC and music, while proceeding to open the bottle of wine and consume about two glasses. 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 higher. Because Mary has not moved the car from its parking spot while under the influence of alcohol, she is not guilty of the offense.
Had the facts been different and had Mary drove the car around the block, while her BAC was 0.08% or higher, she could lawfully be charged with the offense. She could also be charged with California’s Vehicle Code Section 23221, which prohibits drinking in a car while it is on a highway, or with California’s Vehicle Code 23222(a), which prohibits possessing an open container in a car while driving on a highway.
To prove that you are guilty of this offense, a prosecutor has to prove the following facts or elements1:
- You drove a vehicle ((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.”))
- 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% over higher. This requires proving that you moved the car any distance. 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: Mary and her friend carpooled, using Mary’s car, to/from a party because Mary was celebrating a job promotion and designated her friend to drive her home that night. While on the way home, the friend needed to stop at a store and parked illegally in a driveway, telling Mary to move over to the driver’s seat in case the car had to be moved. A police officer noticed Mary parked illegally with the car engine running and went to investigate. When he started talking to Mary, he could smell a strong smell of alcohol on her breath. When he conducted a test, her BAC level was above 0.08% and the police officer booked Mary for Driving with a BAC of 0.08% or higher. Because Mary never actually moved the car for any distance, and only her sober friend drove, she is not guilty of this offense.
- When you drove, your blood alcohol level was 0.08 % or more by weight.
- The key point in this element is that a prosecutor has to show that you were driving at the time your BAC was 0.08 % or more, rather than showing that it is at that level before or after you have been driving.
Example: James was driving sober and got into an accident. The other car was unaffected by the impact and the driver had quickly fled the scene without checking on James. James’ car was left inoperable on the side of the street, and while waiting for a tow truck, he went to a pub next door to have a drink. When he emerged from the pub, there was a police officer hovering over the car. When the officer approached James, he immediately smelled a strong alcohol odor on James’ breath and proceeded to give james an alcohol breath test. Even if the test shows a BAC of 0.08% or over, James will still not be guilty of the offense, because he was sober when he drove.
The other driver who fled the accident scene, can be charged with felony or misdemeanor Hit & Run pursuant to California’s Vehicle Code Sections 20001 or 20002 for failing to stop and perform the duties that are required to be performed by a driver who was involved in an accident.
Former Prosecutor, Diana Aizman Providing Legal Analysis
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.
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.
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:
Misdemeanor charge: Offenses under this code section are typically charged as misdemeanors for the first, second, and third time DUI offenders. If that is the case, a defendant faces:
- a maximum jail sentence of 6 months in county jail
- a fine between $390 and $1,000
- a 6-month to 3-year driver’s license suspension
- informal probation
- installation of a California ignition interlock device “IID”
- successful completion of a DUI program, the length of which varies depending on factors like your BAC at the time of arrest
Felony charge: If you have committed your fourth DUI offense within a 10-year period, or have committed a DUI causing injury pursuant to Vehicle Code Section 23153(b) — Driving With 0.08 Percent Blood Alcohol Causing Injury, you may face the following penalties:
Aggravating Factors: The following factors, if present in addition to a violation of the offense Driving with a BAC of 0.08% or More, 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.
- Refusal to Take Chemical Testing: Pursuant to Vehicle Code Section 23578, a defendant can incur additional or enhanced terms of punishment if you refused to submit to chemical testing.
- Speeding: 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 jail.
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 under.
The state of California has implemented some of our nation’s harshest DUI laws. It is important to find a knowledgeable California attorney who can assist you in reducing the charges or fighting for lesser penalties.
At the Aizman Law Firm, our experienced DUI attorneys can help you with questions you might have about the entire DUI process and penalties for an offender. If you need to speak to a DUI attorney about your DUI case, please call our office at: (818) 351-9555 for a free consultation.
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- 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]. [↩]