Let's delve into the difference between California Vehicle Code 23152(a) and 23152(b) VC. It's crucial to understand that driving under the influence (DUI) is not just a serious offense but one with potentially life-altering consequences.
For those accused of DUI in California, the legal process can be both intimidating and confusing. It's not uncommon for drivers to feel a sense of bewilderment about their DUI charges, especially if their blood-alcohol tests come back with a BAC below the legal limit or inconclusive.
It's a common misconception that one can't be charged with DUI if their BAC doesn't confirm they were under the influence. You're not alone in this confusion. The source of confusion is understanding the nuances between the two statutes.
Vehicle Code Section 23152(a) (driving under the influence) and Vehicle Code Section 23152(b) (driving with a BAC level of 0.08% or greater).
Vehicle Code 23152 VC says, "(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 their blood to drive a vehicle."
Thus, Vehicle Code23152(a) is the 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.
California Vehicle Code 23152(b) VC makes it automatically (per se) illegal to drive a motor vehicle with a BAC at or above 0.08%. DUI is typically a misdemeanor, and the penalties grow harsher with each conviction.
If your breath or blood test shows a BAC of 0.08% or higher, you will be charged with both 23152(a) VC drunk driving as well as 23152(b) VC driving with a BAC of at least 0.08% (DUI per se). However, even if the court finds you guilty of both offenses, it counts as a single DUI conviction. Let's unravel this confusion to understand better how DUI works in California.
The Basics of VC 23152(a)
Section 23152(a) of the California Vehicle Code makes it illegal to drive under the influence of alcohol without putting any stipulation on what constitutes being "under the influence."
Unlike VC 23152(b), which hinges on blood alcohol concentration (BAC) levels, VC 23152a does not require conclusive evidence of a BAC above 0.08%. Instead, this charge is based on the driver's conduct, physical symptoms, and overall behavior observed by law enforcement.
Simply put, Vehicle Code 23152(a) VC prohibits driving under the influence of alcohol (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.
After every DUI arrest, you must submit (implied consent) to a breathalyzer or blood test to measure your BAC (blood alcohol content). However, you can be convicted of DUI alcohol even if the alcohol test results are within the legal limit of less than 0.08%.
For example, an officer might pull over a driver who exhibits erratic driving patterns such as weaving, speeding, or failing to stop at traffic signals.
During the stop, if the officer notices slurred speech, bloodshot eyes, an unsteady gait, or an odor of alcohol, they may determine that the driver is under the influence, even if no chemical test has been conducted or if the test results are later inconclusive.
This means you can be charged under VC 23152(a) based purely on observable signs of intoxication without immediate proof of your BAC.
The Role of VC 23152(b)
VC 23152(b), on the other hand, specifically addresses drivers whose BAC is 0.08% or higher. California, like most states, has established this as the legal limit for standard passenger vehicles.
For drivers of commercial vehicles or those with certain restrictions, such as rideshare drivers, the BAC limit is as low as 0.04%. And for drivers under age 21, any perceivable amount of alcohol in the bloodstream is a violation of the law.
Critically, this charge comes into play when chemical testing, such as a breath, blood, or urine test, confirms a BAC of 0.08% or higher. Unlike VC 23152(a), VC 23152(b) is not reliant on subjective observations by an officer. Instead, it's built upon measurable, objective test results.
However, these results can sometimes be contested due to equipment errors, improper testing procedures, or physiological factors that may affect readings.
Simply put, California Vehicle Code 23152(b) VC forbids driving with a BAC (blood alcohol concentration) of at least 0.08%. It does not matter if you have a high alcohol tolerance and are driving safely without being impaired by alcohol.
The elements of this crime are listed in Jury Instruction (CALCRIM 2111). To be convicted of 23152(b) VC, California prosecutors must prove beyond a reasonable doubt the following elements of the crime:
- You were driving an automobile, and
- You had a BAC of 0.08% or greater by weight.
Why You Could Be Charged Under Both VC 23152(a) and VC 23152(b)
When arrested for DUI in California, many drivers are surprised to find themselves facing both VC 23152(a) and VC 23152(b) charges simultaneously. How is this possible? The answer lies in the complementary nature of these laws.
Initially, an officer can arrest you under VC 23152(a) if they observe behaviors or physical signs indicating impairment. Later, if a chemical test conducted within three hours of driving confirms a BAC of 0.08% or higher, the prosecutor can also charge you under VC 23152(b).
However, even if a conclusive BAC test result is not available at the time of arrest, the VC 23152(a) charge is often sufficient to proceed with a DUI case.
The reason for the dual charges under sections (a) and (b) is primarily to reinforce the prosecution's case against you. In other words, it's easier to get a DUI conviction if the BAC proves you were under the influence.
That said, we should note that receiving both charges does not mean you'll face two DUI convictions. California law considers VC 23152(a) and VC 23152(b) as alternative theories of the same offense. If convicted, you would have one DUI conviction on your record despite being charged under both sections.
How Can a California DUI Attorney Help?
If you've been charged under VC 23152(a), VC 23152(b), or both, it's crucial to consult with an experienced California criminal defense attorney. Defending against DUI cases involves a range of complexities, such as:
- Challenging the accuracy of BAC test results.
- Casting doubt on an officer's observations or
- Procedural conduct.
A qualified attorney can assess the specifics of your case, identify weaknesses in the prosecution's evidence, and evaluate whether your rights were violated during the stop, arrest, or testing process. They can also identify mitigating circumstances or alternative reasons for your behavior behind the wheel that might have incorrectly suggested DUI.
They can argue for the suppression of improperly obtained evidence, negotiate for lesser charges or sentencing alternatives, and, when appropriate, fight for the complete dismissal of the case. For more information, contact Eisner Gorin LLP, our Los Angeles DUI lawyers based in Los Angeles, CA.
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