VC 23152(b) – Driving With a Blood Alcohol >0.08%
23152. (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. For purposes of this article and Section 34501.16, percent, by weight, of alcohol in the blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
Overview of the Criminal Charge
California Vehicle Code Section 23152(b) is a fundamental statute used to prosecute individuals accused of driving under the influence (DUI) of alcohol. This section specifically addresses the act of driving with a blood alcohol concentration (BAC) of 0.08% or higher. Unlike 23152(a), which focuses on impairment due to alcohol, Section 23152(b) establishes a clear BAC threshold, making it a per se DUI offense.
Elements of the Crime
To convict a defendant under Section 23152(b), the prosecution must prove the following elements beyond a reasonable doubt:
- The Defendant Was Driving a Vehicle: The prosecution must establish that the individual was actually driving a motor vehicle. This can be shown through direct evidence (such as testimony from a police officer) or circumstantial evidence (like the defendant being found in the driver’s seat of a vehicle with the engine running).
- The Defendant’s BAC Was 0.08% or Higher While Driving: The prosecution must prove that the defendant’s BAC was at or above the legal limit of 0.08% at the time of driving. This is typically done using breath, blood, or urine tests administered shortly after the traffic stop or accident. The BAC measurement is a critical piece of evidence, and the prosecution must demonstrate that the testing procedures were conducted properly to ensure accuracy.
Legal Implications
A conviction under Section 23152(b) carries serious legal consequences. These penalties vary depending on whether it is the defendant’s first DUI offense or if they have prior DUI convictions. The standard penalties for a first-time DUI conviction under 23152(b) include:
- Fines: The defendant may face fines ranging from $390 to $1,000. However, when court fees and penalty assessments are added, the total financial impact can be significantly higher.
- License Suspension: The DMV may impose a license suspension for up to six months for a first offense. In some cases, a restricted license may be available, allowing the defendant to drive to work, school, or DUI programs.
- Probation: Informal probation, typically lasting three to five years, is a common consequence for first-time offenders.
- DUI Education Programs: Offenders are usually required to complete a DUI education program, which can range from three to nine months, depending on the BAC level and prior offenses.
- Jail Time: First-time offenders may face a minimum of 48 hours in jail, although this can be waived in favor of community service or alternative sentencing options in some cases. The maximum jail sentence is six months.
Defenses to a Section 23152(b) Charge
Several defenses can be raised to challenge a DUI charge under Section 23152(b):
- Challenging the Accuracy of the BAC Test: The defense can question the accuracy of the breathalyzer or blood test. This might involve disputing the calibration of the testing equipment, arguing that the test was administered improperly, or highlighting factors that could have influenced the test results, such as the timing of the test relative to the driving or the defendant’s unique physiology.
- Rising BAC Defense: A common defense is the “rising BAC” argument, where the defendant’s BAC was below 0.08% while they were driving but increased to 0.08% or higher by the time the test was administered. This occurs because alcohol takes time to absorb into the bloodstream, and the BAC could continue to rise after the defendant has stopped driving.
- Medical Conditions: Certain medical conditions, such as GERD (Gastroesophageal Reflux Disease), ketosis, or diabetes, can produce falsely high BAC readings. The defense may present medical evidence to support this argument.
- Illegal Stop or Arrest: If the police lacked reasonable suspicion to make the traffic stop or probable cause to arrest the defendant, any evidence obtained as a result of the stop or arrest could be suppressed, potentially leading to the dismissal of the charges.
The Role of Implied Consent
In California, drivers are deemed to have given their implied consent to chemical testing (breath or blood) when lawfully arrested for DUI under the state’s Implied Consent Law (California Vehicle Code Section 23612). Refusing to submit to a chemical test can result in additional penalties, including a longer license suspension and the use of the refusal as evidence against the defendant in court.
Conclusion
California Vehicle Code Section 23152(b) is a crucial statute in DUI prosecutions, specifically targeting drivers with a BAC of 0.08% or higher. A conviction under this section carries significant penalties, including fines, license suspension, probation, DUI education programs, and possible jail time. Defending against a 23152(b) charge often involves challenging the accuracy of BAC tests, arguing rising BAC, or raising procedural defenses. Given the complexity and potential consequences of a DUI charge under this section, individuals facing such charges should seek the advice and representation of an experienced DUI attorney to explore all possible defenses and protect their rights.