Los Angeles DUI Attorneys California Vehicle Code Section 23152(a) VC

Overview of California DUI Laws

In California, In order to convict a person of DUI, the prosecution must Los-angeles-dui-chargesprove beyond a reasonable doubt that the accused drove a vehicle while under the influence of alcohol, drugs, or both ; or, that the accused drove a vehicle with 0.08 percent or more, by weight, of alcohol in their blood. Depending on the circumstances, a DUI case may be charged as a misdemeanor or as a felony. It may be charged as a felony where someone is injured (usually when an accident is involved), or where the accused has three or more prior DUI convictions (or convictions that count as a prior DUI, such as a wet reckless). These convictions must have occurred within 10 years of the new charge to count against the accused as a prior conviction.

When you are pulled over and the police officer suspects you of DUI, there are certain things that the law requires you to do, and certain things that are voluntary. The only thing that the law requires you to do is submit to a chemical testing of your blood or breath at the police station after being arrested. Everything else, such as answering their questions, performing field sobriety tests, or blowing into the Preliminary Alcohol Screening test (PAS test), is voluntary! (For more information, see our page on what to do if suspected of DUI)

DUI is a very serious crime in California. Depending on whether you are charged with a misdemeanor or a felony, a conviction could mean spending the next 4 years in a California state prison. In addition to criminal penalties, getting stopped for DUI puts your driving privilege in jeopardy. You need an experienced lawyer on your side in these cases not just because the law is confusing, but because it has a time limit. In California, you have 10 days to request a DMV hearing after being charged with a DUI. If you don’t request a hearing in that time, your license will be suspended for up to one year.

Many people facing DUI charges are afraid of losing their driver’s license. In Southern California, this is an honest fear. More than just about any place on earth, people who live in the Los Angeles area need a car. We drive to work. We drive kids to school. We drive to run errands. For most people, there isn’t a day that goes by that doesn’t have a good chunk of it spent behind the wheel.

Therefore, if you or a loved one has been charged with DUI in Los Angeles, having an experienced and aggressive Los Angeles DUI attorney fighting for you may mean the difference between freedom and prison and between keeping and losing your license. At Lewin Law Group, [our team of DUI attorneys/our founder, Chad Lewin over a decade of experience successfully defending clients from DUI charges. If, after reading our comprehensive analysis of California DUI laws below, you have questions or would like to speak to a Los Angeles DUI attorney, call attorney Chad Lewin/the attorneys at Lewin Law Group immediately for a FREE, CONFIDENTIAL consultation at (888) 546-5394. We are available 24 hours a day, 7 days a week to help you.

California Vehicle Code Section 23152 VC Examined

In California, most DUIs fall under one of two definitions under Vehicle Code Section 23152 VC, either the “subjective” definition under 23152(a) VC or the “per se” definition under 23152(b) VC. Violation of either definition of DUI is usually a separate misdemeanor offense. While almost everyone is familiar with the “per se” definition under 23152(b) VC, which states that it is a crime for any person to drive a vehicle with a blood alcohol content (BAC) of .08% or higher, most people are shocked when they become aware that the “subjective” definition under 23152(a) VC even exists. You may be surprised to learn that, under 23152(a) VC, it is a crime for any person who is “under the influence” of any alcoholic beverage, regardless of that person’s blood alcohol content (BAC), to drive a vehicle. The key to 23152(a) VC is the language “under the influence”, which is defined as your physical and mental abilities being impaired to the point that you can no longer drive as well as a normal cautious sober person.

California DUI laws are purposely set up in this manner, using these two different definitions, so that law enforcement can arrest more people for DUI and prosecutors can obtain more DUI convictions. The reason why these two definitions lead to more DUI arrests and convictions is because it allows Vehicle Code Section 23152 VC to account for different levels of tolerance in different people.

Example:

Tina just recently turned 21 and has never had a drink in her life. She and her friends go out to a bar to celebrate Tina’s first drink. Tina, who weighs 120 pounds, has 2 cocktails with her friends. When Tina gets into her car to drive home she has a .06% BAC, below the “legal limit” of .08 % BAC. Yet, because of her low tolerance to alcohol, her ability to drive has become impaired. Tina gets pulled over for swerving in and out of her lane numerous times. Because of her driving and the smell of alcohol on her breath, Tina is asked to perform Field Sobriety Tests (FSTs) and an on-field Breath Test (PAS). Incorrectly thinking she has no other choice, Tina consents to both. Tina performs very poorly on the FSTs, but blows only a .06% BAC on the breathalyzer. Despite blowing less than a .08% BAC, the cop believes Tina is “under the influence” and arrests her for suspicion of DUI under Vehicle Code Section 23152(a) VC.

Note:

If 23152(a) VC did not exist, Tina could not be arrested nor convicted for DUI under the current language of 23152(b) VC. This is because, regardless of how impaired her ability to drive was, she had a BAC under .08%.

Example:

Johnny is 60 years old, weighs 240 pounds, and is a lifetime drinker. Johnny goes to his favorite sports bar to have some beers and catch his favorite team play. When Johnny gets into his car to drive home he has a .10% BAC, above the “legal limit” of .08% BAC. Yet, because of his high tolerance to alcohol, his ability to drive has not become impaired. Johnny gets pulled over for a busted taillight, despite otherwise driving perfectly. Because of the smell of alcohol on his breath, Johnny is asked to perform Field Sobriety Tests (FSTs) and an on-field Breath Test (PAS). Incorrectly thinking he has no other choice, Johnny consents to both. Johnny performs very well on the FSTs, but blows a .10% BAC on the breathalyzer. Despite not showing any sings of impairment and performing well on the FSTs, the cop arrests Johnny for suspicion of DUI under Vehicle Code Section 23152(b).

Note:

If 23152(b) VC did not exist, Johnny would likely not be arrested nor convicted for DUI under the current language of 23152(a) VC. This is because, regardless of how high his BAC was, his ability to drive was not impaired.

Practically speaking, most people arrested for DUI are charged with both 23152(a) and 23152(b). Usually, when negotiating a plea deal, a skilled attorney will be able to get the prosecutor to drop one of the offenses. Additionally, at trial, you could be found guilty of both offenses, guilty of only one, or not guilty of both. Even if you are found guilty of both offenses, you will be punished as if you were only convicted of one of them.

The rest of this article will discuss the “subjective” definition of DUI under Vehicle Code Section 23152(a) VC. For a discussion of the “per se” definition of DUI under Vehicle Code Section 23152(b) VC, please see our page on DUI with a BAC of .08% or more.

How is Vehicle Code 23152(a) VC Prosecuted?

Under California Vehicle Code Section 23152(a) VC, in order to convict you of driving under the influence, the prosecution must establish the following elements:

  • You drove a vehicle; AND
  • While you were driving, you were under the influence of alcohol.

While proving that you were “under the influence” is usually the more difficult element for the prosecutor, proving that you were driving is not as straightforward as you might think.

You drove a vehicle

The key to this element is that the prosecutor must prove that while you were driving, you were under the influence of alcohol. It is not enough for the prosecutor to just prove that you were under the influence of alcohol, while inside or near a car.

Obviously, when you are pulled over while driving, this element is easy to establish. Yet, it is in those situations where a cop does not personally witness you driving, such as when you are found sleeping in a car or a cop responds to an accident site that makes this element more difficult for the prosecutor to prove. To deal with these special situations, California court decisions have provided some guidance as to what constitutes driving and what evidence can be used to prove it. California courts have ruled that a “slight movement” of the vehicle is required to establish driving. Additionally, those same courts have stated that, in the absence of direct evidence, circumstantial evidence can be used to prove that “slight movement.” Circumstantial evidence is evidence that shows guilt, not directly, such as an eye witness, but through inferences made from the surrounding circumstances.

Example: Tina went to the bar to celebrate her 21st birthday. She only had 2 drinks and a BAC of .06% when she left the bar. Despite not being over the legal limit of .08% BAC, Tina feels pretty drunk. Even though she feels drunk, Tina decides to drive home, which is 10 miles away from the bar. Tina ends up parked on her front lawn, passed out in the driver’s seat of her car, with the engine running and lights on. A cop who didn’t see her drive, but sees her car on the lawn, investigates and places her under arrest for suspicion of DUI. Tina will likely be found to have driven her car, despite no one, including the cop, actually witnessing her driving. This is because, based on the circumstantial evidence, such as the car being found 10 miles away from the bar, on Tina’s lawn with the engine running, and Tina being found alone with no evidence of other potential drivers, the inference can be made that Tina drove her car home.

Compare with Example: Same as above, except that, instead of driving home from the bar, Tina decides to “sleep it off” in her car before driving. While sleeping in the back seat, a cop notices Tina’s headlights are on and approaches her vehicle. After speaking to her, he believes that she is under the influence of alcohol and arrests her for suspicion of DUI.

It will be unlikely that Tina will be found to have driven her car, since the circumstantial evidence against her is weak. Specifically, Tina was found sleeping in the back seat of her car, not in the driver’s seat. Additionally, her engine was not on and likely cool to the touch. Lastly, she was found legally parked at the bar, which was 10 miles away from her home.

You were under the influence of alcohol

Under the California Criminal Jury Instructions, a person is under the influence if, as a result of drinking an alcoholic beverage, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. To prove that you couldn’t drive your car in the same way as a sober person, the prosecutor will rely heavily on the investigating officer’s observations of you. In 23152(a) VC cases, the cop will almost always testify that you exhibited poor driving patterns, had a “drunk” physical appearance, and failed your field sobriety tests. Specifically, cops typically testify that the defendant was exhibiting at least some of the following: swerving, speeding, following too closely, braking erratically, blood shot eyes, smelled like alcohol, slurred speech, didn’t follow directions and/or lacked balance while performing FSTs.

Defenses to California DUI (Vehicle Code Section 23152(a) VC)

While you may feel like fighting a DUI charge is hopeless, remember, a conviction requires all 12 jurors to agree on your guilt. A skilled Los Angeles DUI criminal defense attorney can create doubt in these categories, making the prosecution’s evidence against you seem shaky. The result is oftentimes a not guilty vote!

An aggressive and experienced DUI lawyer can point out all of the things that you did right and demonstrate that you were not driving drunk. At Lewin Law Group, our unshakable commitment to putting the interests of our clients first, coupled with our strong work ethic and commitment to leaving no stone unturned has resulted in countless acquittals, dismissals, and reduced charges for our clients. The following are but a few of the possible defenses our attorneys can utilize to win your case.

Your driving pattern was not caused by alcohol

The jury instructions make clear that the manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of an alcoholic beverage. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.

For example, you could have made driving errors because you were lost, tired, ill, or had trouble seeing due to darkness or weather.

Your physical appearance was not caused by alcohol

Very similar to the above defense, your attorney may be able to establish that you may have had the physical appearance of a drunk person, such as blood shot eyes or a lack of balance, but for a reason other than alcohol.

For example, you may have had blood shot eyes because you were awake all night working. It could also be that you suffer from allergies or illness or you became nervous and intimated by the cop. While you may have had one drink, which explains the smell of alcohol on your breath, you didn’t have enough to be under the influence and these other factors could reasonably explain your appearance.

Field sobriety tests are designed to make you fail

Field sobriety tests are not really tests at all. Instead, they are physical agility exercises that are SUBJECTIVE in nature. In other words, the police officer, who already thinks you are DUI because he is giving you the field sobriety tests, is the one who is determining whether you pass or fail each test. The officer is looking for any and every mistake that you make. In fact, many people with absolutely no alcohol in their system “fail” these tests. Field Sobriety Tests may include any or all of the following:

    • Nystagmus Test
    • Walk and Turn
    • Standing on One Leg
    • Finger to Nose
    • Alphabet Test
    • Rhomberg Balance Test
    • Hand Pat TestA skilled DUI defense lawyer can turn your failing these tests into you passing these tests.

A lawyer at Lewin Law Group will know how to cross examine the police officer who administered and “graded” each test and get him/her to admit to all the things you did right. Additionally, a Lewin Law Group lawyer will attack the validity of the tests and how they were administered.

Criminal Penalties for California DUI

Under California law, a violation of Vehicle Code Section 23152(a) VC, could be charged as either a misdemeanor or a felony, depending on the specific circumstances of your case and whether or not you have prior DUI or “DUI-like” convictions (see our page on wet reckless).

Generally, most first, second, and third DUIs are charged as misdemeanors, yet the penalties become greater with each subsequent DUI.

The fourth DUI and each DUI after are usually charged as a felony, if you have three or more prior DUI or “DUI-like” convictions within the past 10 years of the current charge. (See our page on Felony DUI based on prior convictions). Additionally, regardless of whether you have any prior DUI convictions at all, if you are DUI and cause injury or death to another, you will face felony charges. (See our page on Felony DUI causing injury or death). Lastly, if you have ever been convicted of felony DUI, each subsequent DUI will be charged as a felony, regardless of how old the felony DUI conviction is. (See our page on Felony DUI based on prior felony DUI conviction).

If convicted of California misdemeanor DUI, you face any or all of the following:

  • Up to 5 years of Informal probation (see our page on probation)
  • Up to 1 year in county jail
    • Minimum of 48 hours if First DUI
    • Mo Minimum of 10 days if Second DUI
    • Minimum of 120 days if Third DUI
    • o Minimum of 180 days if Fourth DUI or More (when charged as a misdemeanor)
  • A fine up to $1,000
  • Completion of an alcohol treatment program
  • License suspension of 6 months to 4 years
  • Installation of an interlock device in your car (this new law is valid for even first time DUI convictions in Alameda, Los Angeles, Tulare, and Sacramento Counties)

If convicted of California felony DUI, you face any or all of the following:

  • Minimum 5 years Formal probation (see our page on probation)
  • Up to 4 years in a California State Prison
    • Additional prison time is possible, if the DUI involved aggravating factors, such as great bodily injury to at least one victim or there are numerous injured victims
    • Strike if DUI involved great bodily injury to at least one victim
  • A fine up to $5,000
  • Completion of an alcohol treatment program
  • Up to a 5 year revocation of your license
  • Designation as a habitual traffic offender by the California DMV

Administrative Penalties for California DUI (DMV Hearing)

In addition to the above criminal penalties, you also face separate administrative penalties, namely suspension or revocation of your license by the DMV. Unlike criminal penalties, which are assessed after you are convicted of DUI, the DMV can and will suspend or revoke your license simply because you’ve been charged with DUI.

For example, in California, you have 10 days to request a DMV hearing after being charged with DUI. If you don’t request a hearing, your license will be suspended for up to one year.

For more information, please see our page on how to fight and win a DMV Hearing.

Related Offenses

Driving with a BAC of .08% or higher (Vehicle Code Section 23152(b) VC)

As mentioned above, this is the “per se” definition of California DUI. Under Vehicle Code Section 23152(b) VC, it is a crime for any person to drive a vehicle with a BAC of .08%. The penalties are identical to those of a violation of 23152(a) above, but the elements of the crime and available defenses are very different.

For more information, please see our page on DUI with a BAC of .08% or more.

Driving under the influence of drugs (DUID) (Vehicle Code Section 23152(e) VC)

Driving under the influence of alcohol is not the only way to get a DUI. Under Vehicle Code Section 23152(e), it is a crime for a person who is under the influence of any drug to drive a vehicle. There are many complex restrictions regarding driving under the influence of drugs, even legal over the counter drugs.

For more information, please see our page on DUID Driving under the influence of drugs.

Felony DUI (Vehicle Code Section 23152(b) VC)

As mentioned above, there are three circumstances where a person can be charged with felony DUI. Each type of felony DUI has different elements and available defenses.

For more information, please see our pages on Felony DUI based on prior convictions, Felony DUI causing injury or death, and Felony DUI based on prior felony DUI conviction.

Underage driving with a BAC of .01% or higher (Vehicle Code Section 23136 VC)

This is the least criminal DUI charge. Being charged with Vehicle Code Section 23136 isn’t technically the same as being charged with a crime. This is because drivers with a BAC between .01% and .05% aren’t legally drunk. Also, common medicines that contain alcohol can leave your BAC over .01%. The only penalty for this charge is a one year license suspension.

For more information, please see our page on Underage DUI.

Underage Driving with a BAC of .05% or Higher (Vehicle Code Section 23140 VC)

This is the most common underage DUI charge. Because anyone who gets caught with a BAC of .08% gets charged as an adult. This is the charge that really means “Underage DUI.” This charge won’t lead to jail time. But, an underage DUI conviction will automatically lead to a one year license suspension and a fine. Drivers 18 to 21 years old charged with DUI also have to attend a mandatory alcohol education program for at least three months.

For more information, please see our page on Underage DUI.

Contact a DUI Attorney at Lewin Law Group

Our Los Angeles DUI defense attorneys have a long track record of success in DUI cases. Without an experienced and aggressive attorney fighting for you, your conviction could result in the loss of your license and freedom and the destruction of your future. If you’ve been charged with DUI in California, time is of the essence! Every minute you wait matters, so call attorney Chad Lewin at Lewin Law Group immediately for a FREE, CONFIDENTIAL consultation at (888) 546-5394. We are available 24 hours a day, 7 days a week to help you or your loved ones.

Vehicle Code Section 23152(a) VC.
Vehicle Code Section 23152(b) VC.
Vehicle Code Sections 23152 and 23153 VC – Felony DUI – punishment.
Vehicle Code Section 23152(b) VC.
Vehicle Code Section 23152(a) VC.
Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2110 – Driving Under the Influence.
Vehicle Code Section 23152(a) VC.
People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 8.
CALCRIM 2110 – Driving Under the Influence.
Vehicle Code Section 23153 VC.
Vehicle Code Section 23550 VC.
Vehicle Code Section 23550.5 VC.
Vehicle Code Sections 23536 – 23548 VC.
Vehicle Code Section 23566 VC.
Vehicle Code Section 23152(a) VC.
Vehicle Code Section 23136.
Vehicle Code Section 23140.