If you were arrested for DUI in California, Vehicle Code 23152(b) is almost certainly one of the charges on your paperwork. It is the "per se" DUI law: it makes the number itself the crime. The prosecutor does not have to prove you drove badly or looked drunk. They only have to prove that you drove with a blood alcohol concentration (BAC) of 0.08 percent or more. I am Joel Brand, and defending this exact charge is what I do every day. Here is how it works and where it can be beaten.

Vehicle Code 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.

Almost every alcohol DUI in California is filed as two counts: this 0.08 percent "per se" charge and the companion impairment charge under Vehicle Code 23152(a). They are charged together so that even if one theory fails, the other can stand. You are not facing two punishments. A conviction on both still results in a single DUI sentence.

What the prosecutor has to prove

To convict you under 23152(b), the prosecution must prove two things beyond a reasonable doubt:

  1. You drove a vehicle. This can come from an officer who saw you driving, or from circumstantial evidence such as the car's position, a warm hood, or your own statements. When nobody actually saw the car move, driving is one of the first things I attack. See my article on the "no driving" defense.
  2. Your BAC was 0.08 percent or more at the time you were driving. The key words are "at the time you were driving." Your breath or blood was almost always tested 30 to 90 minutes later, back at the station. The number on the test is not automatically your number behind the wheel, and that gap is where many of these cases are won.

Penalties for a first 23152(b) conviction

A first-offense DUI under 23152(b) with no injury and no prior convictions is a misdemeanor. If the court grants probation, which is the usual outcome, the typical sentence includes:

  • Fine: a base fine of $390 to $1,000 under Vehicle Code 23538. With mandatory court assessments the total owed to the court is several times the base fine. You can estimate the full picture with my total DUI cost calculator.
  • DUI program: a 3-month, 30-hour licensed program if your BAC was under 0.20 percent, or a 9-month, 60-hour program if your BAC was 0.20 percent or more or you refused testing.
  • Probation: three to five years of informal (summary) probation.
  • Jail: when probation is granted, the court can impose 48 hours to 6 months in county jail as a condition, and in practice many first offenders serve little or no actual jail. Only if probation is denied does Vehicle Code 23536 set a 96-hour minimum.
  • License: a conviction triggers a 6-month court suspension, which runs concurrently with the DMV's 4-month administrative suspension. You can usually keep driving the whole time by installing an ignition interlock device. See how the license side works in my California DUI license guide.

The penalties climb sharply with a high BAC, a child in the car, an accident, or a prior conviction. For the full ladder, see the California DUI penalties guide, the high-BAC (0.15%+) page, and the pages on second and third offenses.

How I defend a 23152(b) charge

A number on a printout feels final. It is not. The test is only as good as the stop, the operator, the machine, and the science behind it. The defenses I use most often include:

  • Rising BAC. Alcohol keeps absorbing for up to an hour or more after your last drink. If you were still rising when the officer pulled you over, your BAC behind the wheel may have been under 0.08 percent even though the later station test read higher. This is the rising BAC defense.
  • Bad calibration and maintenance. Breath machines have to be calibrated and maintained on a strict schedule. When the records are missing or late, the result is open to challenge. See the calibration defense.
  • Mouth alcohol. Burping, acid reflux, dental work, or residue can trap alcohol in the mouth and spike a breath reading well above your true BAC. See the mouth alcohol defense.
  • Medical conditions. GERD, diabetes, and a low-carb (ketogenic) diet can all distort a breath result. See medical conditions that affect a DUI and the diabetes defense.
  • An unlawful stop or arrest. If the officer had no legal reason to stop you or no probable cause to arrest, I can move to suppress the test and everything that followed. A granted motion often ends the case. Browse my full top DUI defenses.

Even when the test holds up, a 23152(b) charge can often be negotiated down to a wet reckless or a dry reckless, which carries lighter consequences and is not a prior DUI in the same way. You can gauge your odds with my wet reckless calculator.

Implied consent and chemical testing

Once you are lawfully arrested for DUI, California's implied consent law (Vehicle Code 23612) requires you to give a breath or blood sample. Roadside handheld breath tests before arrest are usually optional for drivers 21 and over, but the evidentiary breath or blood test after arrest is not. Refusing it adds a one-year hard license suspension and a sentencing enhancement, and the refusal can be used against you in court. California no longer uses urine testing for alcohol except in narrow circumstances.

Two clocks are already running

You have only 10 days from your arrest to demand a DMV hearing, or you lose the right to fight the administrative suspension and it takes effect automatically. The criminal case runs on a separate track. Both deserve attention from day one. See the first 10 days after a DUI and check your deadline with the DMV hearing deadline calculator.

Charged under 23152(b)? Let's talk.

A 0.08 percent reading is a starting point, not a verdict. I have built my entire practice around California DUI defense, and I look at every case to find the stop, the testing, and the science that can be challenged. Use the free case analysis on this page, or call me directly at (888) 271-6644. I answer my own phone, 24/7.

From the DUI blog: DUI vs. DWI in California, explained.