California Vehicle Code Section 23152(b) makes it “unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” This offense is a misdemeanor punishable by probation, fines, DUI school, a license suspension, an ignition interlock device and sometimes jail or work release.
Suspects who take a breath test or blood test that registers a BAC of .08 or higher are typically charged with two crimes:
- Vehicle Code 23152(a): Driving under the influence.
- Vehicle Code 23152(b): Driving with a BAC of .08 or more.
However, even if both of these charges are sustained, the two charges count as only a single DUI conviction.
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THE LAW | PENALTIES | DEFENSES | HELP YOU NEED
THE LAW
California Vehicle Code Section 23152(b) reads:
Under Vehicle Code 23152 (b), “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.”
This is known as a DUI per se. Regardless of the driver’s actual impairment, a driver is considered to be under the influence “per se” if his/her blood alcohol content (BAC) meets a certain threshold. For most drivers that limit is 0.08% or higher. Underage drivers and commercial drivers have a lower per se limit.
Blood alcohol is tested through chemical tests of the blood or breath. During a traffic stop, a police officer may try and get the driver to submit to a preliminary alcohol screening test, also known as a breathalyzer. However, this is not the test that will be used in court. Instead, the chemical breath test will usually occur with a much bigger, and arguably more accurate machine, often at the police department. These later test results will be used by a prosecutor to attempt to show a violation of the vehicle code.
PENALTIES FOR VIOLATING 23152(B) VC
VC 23152B arrests are no laughing matter; a DUI conviction can stay with you for the rest of your life and affect your opportunities for years to come. If you don’t avoid a conviction in one way or another, you could lose your job and any progress you’ve been making to reach your life goals.
A conviction for driving with a BAC of .08 percent or higher is treated the same as a driving under the influence conviction under California Vehicle Code Section 23152(a) VC, with identical penalties and consequences. Unless the defendant is facing his or her fourth (or greater) DUI offense within a ten year period, driving with a blood-alcohol content of 0.08 or higher is a misdemeanor level offense.
In these instances, the defendant may be sentenced to jail, alcohol programming class of varying lengths, community service and/or labor, court fines, restitution where there was an accident, and any other conditions of probation. There may be additional penalties assessed for defendants with a blood alcohol content of .15 or higher. For felony-level DUI offenses in Los Angeles, the defendant can be sentenced to up to three years in prison.
Regardless of a DUI conviction, the California DMV will issue a driver’s license suspension for drivers who are caught driving with a BAC of 0.08 or above. When a person is initially arrested for DUI in Los Angeles, he or she will be served with a notice of impending driver’s license suspension. If the driver wants to contest that hearing, he or she only has ten days to file a hearing request with the DMV. Failure to do this will result in an automatic suspension. The length of the suspension is typically four months for first time offenders, but can be longer for those with prior DUI-related offenses.
An offender of vehicle code 23152(b) vc, may be facing the following punishments/penalties depending on whether (1) He/she is a first-time DUI offender; (2) the offense is charged as a misdemeanor or felony DUI, (3) the facts of the case and (4) the offender’s criminal history.
| PENALTY | MISDEMEANOR | FELONY |
|---|---|---|
| Fine | $390-$1,000 + penalty assessments | $390-$1,000 + penalty assessments |
| Probation | 3-5 years informal probation | 3-5 years formal probation |
| License Suspension or Revocation | 6 month – 3 years suspension7 | 4 year revocation |
| Ignition Interlock Device | Depends on county | Yes |
| Habitual Traffic Offender Status | No | Yes |
| DUI Program | 3-30 Months DUI School | Yes |
| Jail Or Prison | Max of 6 months county jail | Max of 3 years state prison |
Additionally, there will be costs for SR-22 Insurance which will be required as a DUI offender.
DEFENSES FOR VIOLATION OF 23152(B) VC
There are several potential ways to fight an allegation of driving with a BAC of 0.08 or higher in violation of California Vehicle Code Section 23152(b). If the officer who initially stopped the vehicle lacked probable cause to justify the stop, any resulting evidence from that stop (including the DUI breath or blood results) would be suppressed and the prosecutor would be unable to go forward with his or her case.
In some cases, an effective Los Angeles DUI Attorney may be able to show prosecutors that because of the way the human body absorbs alcohol, the defendant’s BAC was under 0.08 at the time of driving and only tested higher due to a rising blood alcohol level.
In addition, there may be several ways to challenge the results of chemical testing, especially where the blood samples were not handled correctly or in cases where breath testing devices were not calibrated or maintained properly.
HELP YOU NEED
If you have been charged with a Los Angeles DUI offense it is very important to consult with an experienced Los Angeles DUI Attorney as soon as possible. There are tight deadlines in every DUI case, especially in regard to driver’s licenses, and retaining an attorney early on can make a significant difference.
With many years of prosecutorial experience, Los Angeles DUI Attorney Chris Nalchadjian is highly effective at fighting all aspects of DUI charges. Mr. Nalchadjian understands the consequences a DUI conviction can carry and works hard to ensure his clients receive the best representation possible.
For more information about driving with a blood alcohol content of 0.08 percent or higher, and to schedule your free consultation, contact Los Angeles DUI Attorney Chris Nalchadian at KN Law Firm. We can be reached 24/7 at 888 950 0011 or through this contact form.