CA Vehicle Code 23152
California takes DUI cases very seriously. For the majority of California motorists, the maximum legal Blood Alcohol Concentration (BAC) while operating a motor vehicle is 0.08%. If you are driving with a BAC greater than 0.08% and are pulled over you will be arrested and likely charged with two separate misdemeanor offenses:
- Driving under the influence of alcohol and/or drugs, CA Vehicle Code 231529(a)
- Driving with a blood alcohol concentration of 0.08% or greater, CA Vehicle Code 23152(b)
For a prosecutor to successfully convict you of driving under the influence he or she must prove the two elements of the case:
- You were driving a motor vehicle
- While driving that motor vehicle you were under the influence of drugs and/or alcohol
If the prosecutor cannot prove these two elements of the case then a conviction should not take place.
The first element that must be proven is that you were driving a motor vehicle. If for instance, you were driving a car and the officer pulled you over and that was the entire incident then it is not difficult to prove you were the driver. However, if an officer arrived at the scene of the accident late and everyone was out of their car then it becomes increasingly difficult for an officer to prove that you were the driver.
In California, it’s required that the officer sees some movement of the vehicle to prove you were driving. However, this can also be proven through circumstantial evidence.
The second element of the case that the prosecutor must prove is that you were under the influence of drugs and/or alcohol while driving that vehicle. The state defines being under the influence as: “Your physical or mental abilities are impaired to such a degree that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances”.
Field Sobriety Tests
Field sobriety tests are one of several factors officers use to determine if you have been operating a motor vehicle while under the influence of alcohol. Officers use the results of these tests to influence their decision as whether or not they should administer more tests; namely, the breathalyzer test or a blood test.
California first started using the results of field sobriety tests in the early1970s and the results are a crucial piece of evidence. But some scientists are weary of the science used in developing these tests and question the ability of an officer to determine a driver’s sobriety based off their results.
Field sobriety tests are not mandatory!
If an officer has reasonable suspicion and believes you’ve been drinking, namely through looking at driving cues, smelling alcohol on your breath, and/or witnessing indicating movements of your eyes, then that officer will ask you to take a field sobriety test. If you don’t want to take the test, then the officer must proceed and he or she must drop the issue. However, it will be noted if you refuse to take the test and added to the police report. You have the right to refuse a field sobriety test but you don’t have the right to refuse a chemical test.
When you receive our license you consent to take either a breath, blood, or urine test to determine if you’ve been drinking. If you refuses to take either a breath, blood, or urine test, then you automatically lose your license for one year and face additional fees and fines.
A list of Field Sobriety Tests and their flaws can be found here .
Chemical test have been used in California for many years, but there are a lot of skeptics who don’t believe they are a reliable way to measure somebodies BAC. A breathalyzer test is used to prove a subject is guilty by measuring the amount of alcohol on a person’s breath. Breathalyzer tests are administered to an arrestee at the spot of the crime.
Many states require that a subject provides two samples. The two samples must measure within 0.020 units of each other for the test to be considered properly administered. If the two samples do not measure within 0.020 units of each other there will be speculation that the instrument or the operator weren’t working improperly.
There are several factors that can potentially alter a breathalyzer reading:
- If the subject ate something prior to the test.
- If the subject burped during the test.
- If the subject used mouth care strips, tobacco, or an inhaler with 15 minutes of the test.
- If the subject was exposed to acetone or is an uncontrolled diabetic.
It’s important to note that you’re only required to take a breathalyzer test or give a blood sample, but not both. Under some rare circumstances when both a subject’s breath and blood are not available then a urine test will suffice.
It is illegal for an officer to lead an arrestee towards one test over the other. For instance, it’s been recorded that some officers try to force arrestees into taking a breathalyzer test by claiming that he or she will sit in jail until the blood technician is available. In actuality, some officers prefer breathalyzer tests because the results are more immediate.
On the other hand, officers have also been known to lead an arrestee to take a blood test because they are thought to be more accurate. Either way, a subject is only required to give one sample.
The decision as to which to give is completely up to the arrestee. If an officer attempts to lead a defendant one way or the other then that can be used against the officer in court.
Under 21 DUI
California exercises a “zero tolerance” policy in regards to driving while under the influence of alcohol for people under 21. Depending on your blood alcohol concentration you could be charged with the following:
- CA Vehicle Code 23136: California’s Zero Tolerance Law (Civil Offense)
- CA Vehicle Code 23140: Under 21 with a BAC of 0.05% – 0.07% (Infraction)
- CA Vehicle Code 23152: Driving Under the Influence (Misdemeanor)
Your level of intoxication, your criminal history, and the details of the crime are the deciding factors in how the prosecutor will charge you. If you are under 21 and have a blood alcohol concentration of even 0.01% while driving you will be charged with a crime.
Because California exercises a “zero tolerance” policy the punishments for each crime are harsh.
For a full understanding read DUI Under 21 article.
If you have recently been arrested for a DUI, CA Penal Code 23152, and you don’t live in California, or have an out-of-state driver’s license, there are several steps that you must take to ensure minimal impact on your driving privileges and criminal record. The two most important things to do are:
- Schedule a DMV Hearing within 10 days of your arrest
- Hire a skilled criminal defense attorney
An out-of-state DUI includes those on vacation in California and anyone who recently moved to California who has yet to register in the state.
It’s important to note that if you’ve recently moved to California you have 30 days to go to the DMV and get a California driver’s license. If you are pulled over and the officer can prove that you’ve been a resident for more than 30 days you can be cited for Driving Without a License, CA Vehicle Code 12500(a) , a misdemeanor.
Once you’ve been arrested for a DUI the arresting officer will:
- If you’re a CA resident, confiscate your CA driver’s license and give you a temporary driver’s license. The temporary license will expire in 30 days, which will begin your drivers license suspension.
- If you’re not a CA resident, give you a notification stating that your driving privileges in CA will be suspended in 30 days.
For a full understanding of Out-of-State DUIs, read this article.
If you’ve recently been arrested for a DUI and have a commercial driver’s license then it’s crucial that you contact a criminal defense attorney immediately. Even if you were not driving a commercial vehicle at the time of your arrest you are still subjugated to increased penalties.
When driving a commercial vehicle you are allowed a maximum blood alcohol concentration of 0.04%. However, if you are not driving a commercial vehicle at the time of incident then you are allowed a maximum blood alcohol concentration of 0.08%, just like the majority of motorists.
Similar to DUI for persons under 21, California has a very strict policy for those who operate a motor vehicle while under the influence of alcohol who have a commercial driver’s license.
For a full understanding of Commercial DUIs, read this article.
DUI with Bodily Injury, California Vehicle Code 23153
To be found guilty of DUI with bodily injury, Vehicle Code 23153, a prosecutor must prove three variables:
- That a driver was driving under the influence of alcohol, drugs, or a combination of drugs and alcohol with a blood alcohol concentration (BAC) of 0.08% or greater (for commercial drivers the BAC only needs to be 0.04%).
- That the driver performed an illegal driving action other than the DUI.
- The additional driving offense caused bodily injury to another person, other than the driver.
Vehicle Code 23153 is commonly referred to as a felony DUI, however, a defendant can be charged with a misdemeanor or a felony depending on several variables.
For a full understaning of DUI with bodily injury, read this article.
DMV Driver’s License Hearing for DUI
The two most important steps that you must take regardless of what type of DUI you’ve experienced are:
- Hire a criminal defense attorney
- Schedule your DMV Driver’s License Hearing
There are two very important things to note about a driver license hearing, first and foremost, it is not your court date and secondly, a hearing is not mandatory for a DUI charge. Upon being released from jail you will have ten days to request a driver license hearing from the DMV’s Office of Driver Safety. This hearing will pertain to the suspension and evocation of your drivers license, the hearing will not decide if you are guilty or innocent of a crime.
It is also important to note that you have the right to represent yourself during the hearing or hire counsel.
Hearings are typically performed telephonically, unless an individual requests a hearing to be performed in person. If an individual contacts the department and schedules a hearing by phone then later seeks counsel, the counsel has the opportunity to write to the department to change the scheduling. The hearings typically take place at a DMV field office near the spot of the arrest or at a different location if both parties can agree.
For a full understanding of the DMV Driver’s License Hearing, read this article.
A Brief History of DUI Laws
In 1910, California became the second state (behind New York) to adopt laws prohibiting people from driving while inebriated. The laws were vague and simply stated that it was illegal for a driver to operate a vehicle while intoxicated. The law did not however, specify what constituted intoxication though it was commonly believed to be 0.15%.
Laws pertaining to driving while intoxicated did not drastically change until the 1980s with the formation of groups like MADD (Mothers Against Drunk Driving), SADD (Students Against Drunk Driving) and others who pressured law makers into adopting stricter laws. MADD is largely responsible for the zero tolerance law for motorists under 21 that the many state still practices today.