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Misdemeanor DUI in California - Vehicle Code 23152(a) and (b) VC

Posted by Dmitry Gorin | Feb 03, 2025

Although driving under the influence (DUI) is always considered a serious offense in California under Vehicle Code 23152, it is usually charged as a misdemeanor unless aggravating circumstances exist.

It's important to understand that even a misdemeanor DUI in California can lead to a significant list of penalties, including substantial fines, probation, license suspension, mandatory DUI classes, and the possibility of jail time. This underscores the seriousness of the offense and the potential impact on your life.

Misdemeanor DUI in California - Vehicle Code 23152(a) and (b) VC
California DUI suspects will face charges under VC 23152(a) drunk driving and VC 23152(b) DUI per se.

Vehicle Code 23152(a) VC is the California statute that strictly prohibits driving under the influence of alcohol. It's crucial to note that you can be convicted even if your BAC is below 0.08%.

The only factor that matters is whether you are too intoxicated to operate a vehicle safely, underscoring the need for caution. VC 23152(a) says, "It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.

California Vehicle Code 23152(b) VC makes it illegal to drive a motor vehicle with a BAC at or above 0.08% automatically (per se). VC 23152(b) says, "It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in their blood to drive a vehicle."

Simply put, VC 23152(b) prohibits 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. 

As noted, DUI is typically a misdemeanor, and the penalties grow more severe with each conviction. The elements of this crime are described under CALCRIM 2111. To be convicted of violating 23152(b) VC, prosecutors must prove beyond a reasonable doubt that you were driving an automobile and that you had a BAC of 0.08% or greater by weight.

Vehicle Code 23152(a) VC

Most misdemeanor DUI offenses are prosecuted as violations of VC 23152(a), VC 23152(b), or both.

Vehicle Code 23152(a) makes it unlawful to operate a vehicle while under the influence of alcohol or drugs.

 DUI field sobriety tests

Legal authorities define being "under the influence" as having impaired physical or mental abilities to the extent that you cannot exercise the caution typical of a sober person under similar circumstances. Understanding these legal definitions is crucial for your defense.

Notably, this section applies regardless of an individual's BAC level, which means law enforcement can arrest for DUI solely based on whether you display common signs of impairment, such as erratic driving, slurred speech, or failing field sobriety tests.

Simply put, 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.

Following every DUI arrest, you must submit 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%.

Prosecutors typically depend on circumstantial evidence to show that you were driving impaired by alcohol. The police will typically report that you were doing the following:

  • We're swerving or driving erratically.
  • Smelling of alcohol.
  • Had slurred speech.
  • Had glassy, watery, or bloodshot eyes.
  • Walked unsteadily with an uneven gate.
  • Admitted to drinking.
  • Failed the PAS test and field sobriety tests.
  • Failed the horizontal gaze nystagmus (HGN) test.

California prosecutors must prove beyond a reasonable doubt these two elements of the jury instructions:

  • You drove a motor vehicle, and
  • You were under the influence of alcohol at the time you drove.

Vehicle Code 23152(b) VC

Vehicle Code 23152(b), on the other hand, focuses on a quantifiable standard of intoxication. It prohibits driving with a BAC of 0.08% or higher. If chemical test results show that a driver exceeds this legal limit, they can be charged under this provision even if there are no visible signs of impairment.

This "per se" DUI statute simplifies prosecution by relying solely on BAC evidence. However, both statutes are often charged together, as they address different aspects of DUI behavior. Therefore, a defendant may face dual allegations for the same incident. To prove blood alcohol content, prosecutors typically rely on the results of:

  • The optional preliminary alcohol screening (PAS), a roadside breath test administered before any arrest, and
  • The mandatory evidentiary breath test or evidentiary blood test you take following your arrest.

Notably, prosecutors do not need any circumstantial evidence, such as erratic driving or slurred speech, to show that you were drunk. You must understand that sober people can have a BAC level above the legal limit.

As a California DUI suspect, you will typically face charges for not only DUI per se under 23152(b) VC but also drunk driving under 23152(a) VC, making driving under the influence a crime even if your BAC is legal.

When Is DUI a Felony?

The majority of DUI offenses in California are categorized as misdemeanors. However, prosecutors may escalate your charge to a DUI felony offense if any of the following are true:

  • It is your fourth DUI (or "wet reckless") offense within 10 years, 
  • You have a prior felony DUI conviction, or
  • Anyone was injured or killed as a result of the incident.

Felony DUI may result in significantly higher fines and prison time if you are convicted.

What are the Penalties for a Misdemeanor DUI in California?

A misdemeanor DUI conviction subjects the defendant to a range of penalties, which can escalate depending on aggravating factors, such as a refusal to submit to a chemical test or a particularly high BAC level. For a first DUI, second, or third offense, penalties may include:

  • Probation: Typically lasting three to five years, misdemeanor DUI offenders often serve informal probation as an alternative to jail time.
  • Jail Time: A first offense can carry up to six months in county jail, while subsequent offenses can result in up to a year in jail.
  • Fines and Fees: Offenders may face fines and court-related fees.
  • Alcohol Programs: Mandatory enrollment and completion of alcohol and drug education classes are common requirements.
  • Driver's License Suspension: The Department of Motor Vehicles (DMV) plays a crucial role in DUI cases. It is responsible for suspending or restricting the defendant's driving privileges for at least 6 months on a first offense, with longer suspensions for subsequent offenses.
  • Installation of an Ignition Interlock Device (IID): Courts may order IID installation, particularly for repeat offenses. An IID is a breathalyzer for your car that prevents the vehicle from starting unless the driver provides a clean breath test. The driver must blow into the device before starting the car, and if alcohol is detected, the car won't start.

What are the Aggravating Factors?

Certain factors can enhance the penalties for a misdemeanor DUI conviction. These include:

  • Excessive BAC levels (e.g., 0.15% or higher).
  • Endangerment of minors (e.g., having passengers under 14 in the vehicle).
  • Reckless driving, such as excessive speeding.
  • Refusal to submit to chemical testing.

Each of these circumstances can intensify sentencing, leading to additional financial penalties or extended jail time.

What are the Common Defenses for a Misdemeanor DUI?

When facing misdemeanor DUI charges, defendants may have several viable defenses at their disposal. A skilled California criminal defense attorney will evaluate the circumstances of your case to develop a defense strategy most suitable to your situation. Common defenses include:

  • Lack of Probable Cause: Law enforcement must have a valid reason to stop a vehicle. If the stop was made without probable cause for a traffic violation, the evidence gathered after the stop may be suppressed.
  • Procedural Errors: Arresting officers must adhere to specific legal protocols during a DUI investigation and arrest. Mistakes such as improper administration of breath tests or failure to advise the suspect of their rights can weaken the prosecution's case.
  • Challenging Chemical Testing Results: Breathalyzer and blood tests can be challenged due to faulty equipment calibration, improper handling of evidence, or medical conditions that may have skewed the results.
  • You Were Not Impaired: Signs of perceived impairment may have alternative explanations, such as fatigue, illness, or anxiety. This defense often requires expert testimony to dispute officer observations.

For more information, contact our Los Angeles DUI lawyers, Eisner Gorin LLP.

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About the Author

Dmitry Gorin

Dmitry Gorin is a State-Bar Certified Criminal Law Specialist, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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