VC 23152(b) – Driving with BAC of 0.08% +

Driving with BAC of 0.08% or More – Table of Contents

• VC 23152(B) Overview
• VC 23152(B) Elements
• VC 23152(B) Sentencing
• VC 23152(B) Defending
• Driving with BAC of 0.08% or More – Hire Us

What is VC 23152(b), California Driving with a BAC of 0.08%?

Similar to California Vehicle Code 23152(a), which deals with the subjective offense of driving under the influence of alcohol, California driving with BAC of 0.08% Vehicle Code 23152(b) VC also deals with the offense of driving under the influence of alcohol.

As noted in the description of California Vehicle Code 23152(a), California driving with BAC of 0.08% Vehicle Code 23152(b) VC is almost always charged in conjunction with California VC 23152(a), which deals with having a blood alcohol content and driving with BAC of 0.08 percent.

California Vehicle Code 23152(a) is what is known as the “subjective” misdemeanor for driving under the influence, as opposed to the “per se” offense that is covered under California driving with BAC of 0.08% VC 23152(b). What this, in essence, is saying is that under California law, a person driving under the influence of alcohol is subject to a subjective analysis of the prosecution working in cooperation with the arresting officer. A number of factors are taken into account, including a person’s driving, their appearance, as well as their performance on the Field Sobriety Test to determine whether or not they are in violation of California VC 23152(a).

California driving with a BAC of 0.08% VC 23152(b), on the other hand, is more straightforward, though still contains its own peculiarities and complications, which we will examine in more detail below. California driving with BAC of 0.08% VC 23152(b) states, “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.” As this crime is technical in nature, it is important to understand the basis for this blood alcohol content percentage, at least nominally. California driving with BAC of 0.08% VC 23152(b) elaborates on what is exactly meant by this 0.08% by adding, “…percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood alcohol content or grams of alcohol per 210 liters of breath.” Since California driving with BAC of 0.08% Vehicle Code 23152(b) is the “per se” driving under the influence law, essentially if an individual is found to be driving a motor vehicle with a blood alcohol content in excess California driving with BAC of 0.08%, that individual will be deemed automatically and presumptively guilty of driving under the influence. Even if there is no other corroborating proof that the individual is indeed under the influence of alcohol, the blood alcohol content alone is enough to create this presumption of guilt. In fact, California driving with BAC of 0.08% Vehicle Code 23152(b) states specifically:

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 alcohol content at the time of driving the vehicle if the person had BAC of 0.08% or more, by weight, of alcohol in his or her blood alcohol content at the time of the performance of a chemical test within three hours after the driving.

As stated, though there is a presumption, it is in fact a “rebuttable presumption”, meaning that if adequate evidence is presented to the contrary, the presumption can be overridden. Exactly how an individual can rebut this presumption will be examined in the possible defenses section below.

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What are the Elements of Vehicle Code 23152(b) VC?

In order to prove that an individual is guilty of driving with a blood alcohol level BAC of 0.08% or more, the prosecutor must, according to the Judicial Council of California’s Criminal Jury Instructions, prove the following:

1. The individual drove a vehicle; AND
2. When the individual drove, the individual’s blood alcohol content was 0.08 percent or more by weight.

The existence of both of these elements is essential to convicting an individual. Either/or will not do when it comes to California Vehicle Code 23152(b). While these two elements are seemingly simple and straightforward, this is not always the case, as with many things involving the law. Looking first at the element of whether the individual did in fact drive a vehicle, what is actually meant by drive? This is not merely a rhetorical exercise. If the prosecutor cannot demonstrate that the individual was in fact driving the vehicle at the time, they cannot be convicted of this offense.

So, how does the officer involved know if an individual was driving? If the officer observed the individual driving before pulling them over, then this would obviously satisfy this element. While this situation is quite common, there are many other situations an individual might find themselves in when approached by an officer. For example, if an officer comes across a seemingly intoxicated individual sleeping in their vehicle while legally parked on the side of the road, there is no easy way to determine that the individual in question was actually driving. Being inside a vehicle with a blood alcohol content of 0.08 or more is not enough to satisfy the first element. As noted in the description of California Vehicle Code 23152(a), the use of circumstantial evidence is key in driving under the influence cases. The case of Mercer v. Dept. of Motor Vehicles states that using circumstantial evidence is entirely proper to determine whether or not some movement of the vehicle has in fact taken place. 53 Cal.3d 753, 770 (1991). If the circumstantial evidence cannot adequately demonstrate that the individual was in fact driving the vehicle, then the first element is not satisfied despite the hunch of the officer.

As for the second element, the key phrase to look at is when the individual drove. As noted in the Jury Instructions:

If the People have proved beyond a reasonable doubt that a sample of the defendant’s (blood/breath) was taken within three hours of the defendant’s [alleged] driving and that a chemical analysis of the sample showed a blood alcohol content level of 0.08 percent or more, you may, but are not required to, conclude that the defendant’s blood alcohol content level was 0.08 percent or more at the time of the alleged offense.

The prosecution is allowed to extend the time of when an individual drove to up to three hours after they drove if a sample of their blood or breath was taken in that timeframe. This is a large advantage granted to the prosecution, and an even larger obstacle to overcome for the accused individual. Allowing for this three-hour window of time, it opens up the door to all manner of misunderstandings and misinterpretations of data.

What are the Penalties for Vehicle Code 23152(b) VC?

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While this offense can be prosecuted as either a misdemeanor or a felony, the majority of California Vehicle Code 23152(b) offenses are prosecuted as misdemeanors and not as felonies. The vast majority of first, second, and third DUI offenses are charged as misdemeanors.

However, if an individual gets to the point of accruing four DUI offenses in a ten-year period, this will more than likely convert these to felony charges for the fourth offense and any offense beyond that. In addition, if an individual causes bodily injury while driving under the influence of alcohol with a blood alcohol content BAC over 0.08%, this can also influence the determination of whether or not to prosecute it as a misdemeanor or a felony offense. If there are injuries involved, this will more than likely cause it to be charged as a felony offense.

For a misdemeanor offense, an individual will be looking at a maximum sentence of six months in county jail (or up to one year for a second or third offense), a fine of between $390 to $1,000, mandatory participation in court-approved DUI class for between three to nine months, and informal probation from three to five years. For a felony driving under the influence offense, an individual will be facing up to three years in state prison, revocation of their driver’s license for four years, and formal probation.

How Do You Defend Against VC 23152(b)?

Rising Blood-Alcohol

One of the most common defenses used to combat a charge under California VC 23152(b) is the “rising blood alcohol content” defense. The essential elements of this defense involve arguing that the alcohol was still being absorbed into the individual’s bloodstream at the time of the stop. As such, if not for the stop, the individual would not have been California driving with a blood alcohol content BAC over 0.08%. Due to the time of the stop before the blood alcohol content level could be tested, more alcohol was absorbed into the bloodstream, thereby raising it over the 0.08% limit.

Say, for example, that an individual is leaving a bar after taking two shots. They live a half mile from the bar. On their way home, they are stopped by the police. By the time they are taken into the station, the full two shots have been absorbed into their system. Now their blood alcohol content BAC is over the 0.08% limit. However, given the proximity of the individual’s dwelling to the bar, had they not been stopped, their blood alcohol content likely would never have risen above the legal limit. Arguments to this effect can be effective in defeating a charge of California driving with a BAC of 0.08% VC 23152(b).

Contaminated Sample

A second effective defense to employ if charged with violating California driving with a BAC of 0.08% VC 23152(b) is to attack the sample that was taken as contaminated. Contamination can happen in a number of ways. A breathalyzer can deliver a false positive if it is artificially inflated by the presence of mouth alcohol. Mouth alcohol is alcohol present in the mouth at higher concentrations than in the bloodstream. This could be caused by any number of health issues, most commonly through acid reflux. As for blood sample contamination, this can occur at various different intervals and affect the test results. Possible contamination can happen when the blood is being drawn, collected, and when it is stored. All of these could possibly affect the results and should be examined.

Defective Equipment

A third effective defense involves attacking the blood alcohol content devices themselves. Under Title 17 in California, there are strict rules on how breathalyzers must be calibrated, maintained, and cared for. If there are any problems with the maintenance or calibration of the device, then the entire results can be called into question. In addition, there are two types of breathalyzers used in California, the EC/IR and the PAS (Preliminary Alcohol Screening).

The PAS is used in the field by the officer when they pull an individual over. The PAS device contains a higher margin of error than the EC/IR device, which is used once the individual is brought back to the police station. In addition, the Pas device is more frequently faulty when it comes to detecting mouth alcohol and adjusting for it. While most EC/IR devices have a “slope detector” system in place to adjust for the presence of this, the PAS does not. Therefore, if the individual’s blood alcohol content is close to 0.08% given in the field, this is reason enough to challenge the results based on the margin of error.

We Want to Help

If you or a loved one have been charged with a violation of VC 23152(b) in Southern California, we invite you to contact us immediately for a free case review.

Our experienced and assiduous Los Angeles Criminal Defense Lawyers will be sure to fight until the end to reduce or drop your charges completely.

Call Us for a FREE Case Review: 213-932-8922

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• How to Defend Against a DUI: Beat The Charge