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Driving under the Influence with BAC of .08% or more: What is the law and punishment?

Vehicle Code 23153(b)  "driving under the influence with BAC of .08% or more" is a "wobbler" meaning it may be charged as a misdemeanor or felony depending on the circumstances and the prior convictions for DUI.  DUIs are complicated cases with room for many defenses and arguments to made at trial.  DUIs are one of the few misdemeanors that have long lasting and serious consequences of a conviction that should be fought with the aid of an experienced attorney.  Both the VC 23152(a) and VC 23152(b) will be charged together but a defendant can only be found guilty one.

What Must Be Proven in a DUI of .08% or more case?

VC 23152(a) requires the following to be proven:

  1. the defendant drove a motor vehicle
  2. the defendant did so with 0.08 percent or more, by weight, of alcohol in his or her blood.

 The prosecution has the burden of proving guilt beyond a reasonable doubt that a DUI of .08% or more has occurred.

What are the penalties for a DUI of .08% or more?

The penalties for DUI are determined by the amount of prior DUI convictions the defendant has within the last 10 years using the date of the violation.

0 prior DUI convictions

The maximum penalty is a fine up to $2,000 plus assessments and/or 6 months in county jail.

Required to take 3, 6, or 9 month DUI program depending on BAC.  

Drivers license suspended for 6 months.

1 prior DUI conviction

The maximum penalty is a fine up to $2,000 plus assessments and/or 1 year in county jail.

Required to take 18 or 30 month DUI program.  

Drivers license suspended for 1 year.

2 prior DUI convictions

The maximum penalty is a fine up to $2,000 plus assessments and/or 1 year in county jail.

Required to take 30 month DUI program.  

Drivers license suspended for 2 years.

3 prior DUI convictions

VC 23152(a) with 3 prior convictions is a felony with maximum penalty up to $10,000 and/or 3 years in state prison or county jail if eligible under PC 1170(h).

Required to take 18 or 30 month DUI program.  

Drivers license suspended up to 5 years.

What are the defenses to DUI of .08% or more?

The complicated nature of DUIs will add to the difficulty of proving your guilty.  Here are the most common issues in DUI cases:

The Detention was an Illegal Seizure under the 4th Amendment

Under the US Constitution, a defendant is protected from illegal search and seizures.  Any detention or arrest by law enforcement must be supported by reasonable suspicion and probable cause in court.  Typically in a DUI case, the arresting officer must present evidence that the defendant committed a traffic violation in order to justify a vehicle stop in the first place.  Additionally, if a defendant was placed under arrest for DUI, the officer will have to present the facts and evidence necessary to justify an arrest for the alleged crime.  If an officer fails to present the facts correctly or audio and video recordings show different, any evidence obtained by the officer may be ruled inadmissible at trial.

The Officer did not obtain your Consent for the Blood Draw

Under VC 23612, every driver agrees to take either a blood or breath test after being placed under arrest for DUI.  This is known as California's Implied Consent Law.  However, there are requirements of the arresting Officer.  In most cases, the Officer must read an admonishment giving you the choice between a blood or breath test unless the arrest is for a drug related DUI.  If you request a breath test or refuse a chemical test and a blood draw is performed without your consent and without a valid search warrant, it is possible that the results may be illegal obtained and inadmissible in court.  

You were not Under the Influence at the Time of Driving

The prosecutor must prove beyond a reasonable doubt that the defendant's BAC was .08% or above at the time of driving.  Generally, BAC is not known until several hours after the arrest for suspicion of DUI has occurred.  Even a high BAC at the police station hours after last driving is not a guarantee of guilt.  Alcohol absorbs slowly into the blood overtime and at different rates depending the individuals body composition and tolerance.  These factors cast doubt on whether BAC at the time of driving can be clearly established by the prosecutor.  In addition, if the last time of driving cannot be established such as when the police come across a stopped vehicle, it is nearly impossible to determine a defendant's BAC at the time of driving.  

Bottom line, you need an experienced attorney who is willing to walk you through the entire process, evaluate your case effectively for weaknesses and exploit the issues in your case to achieve the best results.  The Law Offices of Steven McNicholl has that experience and will get you through your case in the best shape possible.

See also

VC 23152(a) Driving under the influence

VC 23153(a) DUI causing injury

VC 23152(b) DUI causing injury with BAC of .08% or more

California's Implied Consent Law

Field Sobriety Test

Admin Per Se Hearing

When should you go to trial for your DUI case? 

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If you or a loved one has been charged with a crime, call the Law Offices of Steven McNicholl at (951) 405-0990. We have the skill and experience in San Bernardino County to protect your rights and get the best results in your case.

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