California Vehicle Code 23152(b) VC – DUI With a BAC of 0.08% or Higher

What Is Vehicle Code 23152(b)?

California Vehicle Code 23152(b) makes it unlawful to drive with a blood alcohol concentration (BAC) of 0.08% or higher.

This is known as a “per se” DUI law. That means:

The prosecution does not need to prove you were visibly impaired.
The only issue is whether your BAC was 0.08% or greater at the time of driving.

The statute states that it is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in their blood to drive a vehicle.

Even if you felt sober and drove safely, a BAC at or above 0.08% is enough to support a DUI charge.

Your best hope for a favorable outcome is with an experienced criminal defense attorney at Eisner Gorin LLP. To schedule a consultation, call (818) 781-1570 or contact us here.

What is the Difference Between VC 23152(a) and 23152(b)?

Most DUI cases in California involve charges under both:

VC 23152(a): Driving under the influence of alcohol or drugs
VC 23152(b): Driving with a BAC of 0.08% or higher

VC 23152(a)

This section focuses on impairment. The prosecution must prove your physical or mental abilities were impaired to the degree that you could not drive as safely as a sober person.

VC 23152(b)

This section focuses strictly on the BAC level. If a chemical test shows 0.08% or higher, impairment does not have to be proven.

Although both charges are typically filed, you can only be convicted of one DUI offense. The two charges merge into a single conviction.

What Must the Prosecutor Prove?

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

You were driving a vehicle, and
Your BAC was 0.08% or greater at the time of driving

Under California jury instructions (CALCRIM 211), visible signs of intoxication are not required.

How Is BAC Proven in Court?

Prosecutors rely primarily on chemical test results, including:

Preliminary Alcohol Screening (PAS) test at the roadside
Evidentiary breath test at the police station
Evidentiary blood test

The evidentiary breath or blood test carries the most legal weight.

However, chemical test results are not automatically accurate. They can be challenged based on:

Improper calibration
Contaminated blood samples
Improper administration
Medical conditions
Rising blood alcohol defense

Can You Be Charged If You Appear Sober?

Yes.

Because VC 23152(b) is a per se DUI law, a person may appear sober and still face charges if the BAC reading is 0.08% or higher.

Likewise, you can be charged under VC 23152(a) even if your BAC is under 0.08% if officers believe you were impaired.

When Is DUI a Felony in California?

Most DUIs are misdemeanors. However, a DUI can be charged as a felony if:

It is your fourth DUI or wet reckless within 10 years
You have a prior felony DUI conviction
Someone was injured or killed as a result of the DUI

Felony DUI carries significantly higher penalties, including potential state prison time.

What Are the Penalties for a Misdemeanor DUI?

Penalties increase with each offense.

First Offense

3 to 5 years of informal probation
Up to 6 months in county jail
Fines and court fees
DUI education program
License suspension (typically 6 months)
Possible ignition interlock device (IID)

Second or Third Offense

Up to 1 year in jail
Longer DUI classes
Extended license suspension
Mandatory IID installation

In addition to court penalties, the DMV can impose separate administrative license suspension.

What Are Aggravating Factors?

Certain circumstances can increase DUI penalties, including:

BAC of 0.15% or higher
Having a child under 14 in the vehicle
Excessive speeding
Refusal to submit to chemical testing
Causing property damage

Aggravating factors may increase jail time and fines.

What Happens After a DUI Arrest?

After arrest, two separate cases begin:

Criminal court case
DMV administrative case

You have only 10 days from arrest to request a DMV hearing to challenge a license suspension.

Failing to act quickly can result in automatic suspension.

What Are Common DUI Defenses?

An experienced DUI defense attorney may challenge the case using strategies such as:

Lack of Probable Cause

Police must have a lawful reason to stop your vehicle.

Improper Testing Procedures

Breath and blood tests must follow strict protocols.

Rising Blood Alcohol

Your BAC may have been under 0.08% while driving but rose afterward.

Faulty Equipment

Breath machines must be properly calibrated and maintained.

Medical Conditions

Acid reflux, diabetes, and certain diets can affect breath test results.

Each DUI case depends heavily on the specific facts and evidence.

Frequently Asked Questions

Is 0.08% automatically guilty in California?

No. The prosecution must still prove you were driving and that the chemical test is accurate.

Can I fight a DUI with a BAC over 0.08%?

Yes. Chemical test results may be challenged, and procedural errors may weaken the case.

Do I lose my license immediately?

Not automatically. You must request a DMV hearing within 10 days to contest suspension.

Can a first DUI result in jail?

Yes, although many first-time offenders receive probation instead of jail.

Do both DUI charges count separately?

No. Even if charged under both 23152(a) and (b), they merge into one conviction.

Why Early Legal Representation Matters

DUI cases move quickly. Critical evidence, such as breathalyzer maintenance logs and police body-camera footage, must be preserved immediately.

An experienced DUI defense attorney can:

Request DMV hearings
Challenge chemical testing
File suppression motions
Negotiate reduced charges
Seek dismissal when the evidence is weak

Early intervention often makes a significant difference.

Contact a Los Angeles DUI Defense Attorney

If you have been arrested for DUI under Vehicle Code 23152(b), you are facing serious penalties that can impact your license, employment, and future.

Eisner Gorin LLP represents clients throughout Los Angeles in misdemeanor and felony DUI cases.

Call 818-781-1570 for a confidential consultation.

The sooner you act, the more defense options may be available.

Misdemeanor DUI