DUI Charges in California
- Vehicle Code §23152 & §23153 -

Driving Under the Influence
– VC 23152 & 23153

Driving under the influence ("DUI") is one of the most common charges in California. In 2019, there were approximately 124,141 people arrested and charged with DUI in California.

Of the people arrested, roughly 70% were ultimately convicted in criminal court. However, the type of conviction and punishment vary widely depending on the circumstances of each case. Keep reading to find out more about DUIs in California.

DUI charges should never be taken lightly. The following information is only intended to provide a general understanding of DUI laws in California.

It is always recommended that someone charged with driving under the influence contact an experienced DUI defense lawyer at JPLaw, P.C. as soon as possible.

1. What is a DMV administrative per se hearing?

The first thing you should know when facing DUI charges in California is that two separate proceedings are initiated following your arrest.

One is a civil proceeding conducted by the California Department of Motor Vehicles, the other is a criminal proceeding that is adjudicated in court.

The DMV proceeding is called an administrative per se ("APS") hearing. The only issue of concern at an APS hearing is whether there is sufficient evidence to warrant suspending your privilege to drive in California.

Immediately following your arrest, the arresting officer will confiscate your license and issue you DMV Form DS-367. That form will act as your temporary license for 30-days and provides you all the information on how to request an APS hearing.

You are only entitled to an APS hearing if you request one within 10-days of your arrest. Failure to request a hearing within 10-days of your arrest will result in the DMV automatically suspending your license.

DMV Form 367 is provided to drivers after being arrested for DUI.

If the DMV finds that sufficient evidence was presented at your APS hearing, it will suspend your license for 4 months. However, if you refused to voluntarily take a chemical test after being arrested, your license will be suspended for 1 year.

The criminal court process is different than an APS hearing. In court, you’re not just dealing with a DMV employee, you’re facing an experienced prosecutor who has filed criminal charges against you for driving under the influence.

Moreover, the stakes are much higher in criminal court. The following information is dedicated to explaining the criminal court process and how you can avoid a DUI conviction.

2. What is considered "driving under the influence" in California?

While many people think that your BAC must be above .08% in order to get a DUI, this couldn’t be further from the truth. There are several laws that criminalize driving under the influence in California, including:

CVC §23152(a) – Driving Under the Influence of Alcohol
CVC §23152(b) – Driving with A BAC of .08% or More
CVC §23152(c) – Driving While Addicted to Drugs
CVC §23152(d) – Driving a Commercial Vehicle with A BAC of .04% or More
CVC §23152(e) – Driving a Passenger for Hire with a BAC of .04% or More
CVC §23152(f) – Driving Under the Influence of Drugs (Including Marijuana)
CVC §23152(g) – Driving Under the Influence of a Combination of Alcohol and Drugs

Of the seven sections that criminalize conduct for driving under the influence, only one of those sections actually requires that your BAC be .08% or more. The other sections only require that you be “under the influence” at the time of operating a motor vehicle.

You are considered “under the influence” within the meaning of CVC §23152 when your mental or physical abilities are so impaired that you are no longer able to drive with the same caution as someone who is sober.

In addition to being under the influence, DUI charges also require that you drive a vehicle on a public road. Contrary to what your friends may tell you, you cannot get a DUI for drunkenly riding your bike home from the bar.

A “vehicle” is defined as a device by which any person or property may be propelled, moved, or drawn upon a highway, but does not include any device moved exclusively by human power or used exclusively upon stationary rails or tracks.

Thus, your ordinary pedal bike is not considered a vehicle for which you can be convicted of driving under the influence. The consequences for biking under the influence in violation of CVC §21200.5 are much less serious than those for driving under the influence.

Biking under the influence is charged pursuant to vehicle code section 21200.5.

"Driving" also has a technical definition within the Vehicle Code. Before you can be convicted of driving under the influence the prosecutor must prove that you willfully moved the vehicle on a public road.

For example, imagine leaving a bar and deciding to sleep in your car. As long as you don’t move the vehicle, you cannot be convicted of driving under the influence. That said, if an officer stops you before you have a chance to move the vehicle, you can be arrested, charged, and convicted of attempted DUI.

3. What are the penalties for a first-time DUI?

As a criminal defense lawyer, I often get asked what the consequences are for driving under the influence. At first glance it seems like a straightforward question, but there are many factors that play a role in determining the penalties of a DUI conviction.

The maximum penalty for a first-time misdemeanor DUI in California is 6-months in jail and a $1,000 fine. However, the court may also elect to grant a defendant probation. The terms of probation for first-time DUI offenders normally include some combination of the following:

3-5 years of probation (a minimum of 3-years of probation is required),
A fine of $390 - $1,000 (a minimum fine of $390 is required),
An alcohol or drug abuse class, (required)
A driver’s license suspension,
Installation of an ignition interlock device (IID) in the defendant’s vehicle,
Up to 6-months in jail,
Community service or community labor,
An order to pay the victim restitution, and
Proof of SR-22 liability insurance for 3-years (required).

Probation is considered an act of leniency by the court. A defendant who is granted probation is expected to comply with all of the terms of their probation. Failure to abide by the terms could result in the court revoking the defendant’s probation.

If the defendant’s probation is revoked, the court may sentence the defendant up to the maximum punishment for whatever DUI charge they were convicted.

Aggravating Factors:

There are also several factors that can enhance the penalties for driving under the influence. Some of these factors must be proved beyond a reasonable doubt, others are just facts that a judge may consider when sentencing a defendant for driving under the influence.

1. Refusing to take a chemical test – CVC §23162

All drivers arrested for DUI are required to submit to a chemical test. Drivers can choose between taking a breath test or a blood test. If neither a breath test nor blood test is available, a driver is required to provide a urine sample.

A chemical breath test is only capable of measuring your BAC. It cannot detect whether you are under the influence of drugs.

Failure to submit to a chemical test can result in the driver’s license being suspended for a period of 1, 2, or 3 years and will be require completion of a 9-month alcohol or drug program.

Additionally, a driver that refuses to provide a sample of their breath or urine for testing may be subject to mandatory imprisonment in the county jail if they are later convicted of a DUI.

Before a jury can find that you refused a chemical test in violation of CVC §23162, the prosecutor must prove (1) that you were lawfully under arrest for driving under the influence and that (2) the office properly advised you of your requirement to submit to a chemical test.

You are NOT REQUIRED to submit to a chemical test unless you have been told that you are under arrest for driving under the influence. A chemical test is different than a preliminary alcohol screening (PAS) test.

A PAS test is a voluntary breathalyzer test that an officer may administer to measure your BAC. However, PAS tests are just an additional way an officer can determine whether you are under the influence before deciding to place you under arrest. It is NOT required, and you should ALWAYS refuse to take a PAS test.

2. Driving with a BAC of .15% or more – §23578

In addition to the ordinary penalties for driving under the influence, a court must consider it a factor justifying enhancing penalties for a defendant whose BAC was .15% or more.

Although the statute does not include what “enhanced penalties” may include, most courts will require the defendant to complete a longer alcohol or drug education program. Rather than the usual 3-month DUI class, the defendant is often ordered to complete a 6-month DUI class.

3. Driving with a BAC of .20% or more – §23538

A driver may be subject to a sentence enhancement if they are convicted of driving under the influence and their BAC measured .20% or more at the time of driving.

Under such circumstances, the court is required to order the defendant to complete a 9-month DUI course as a term of the defendant’s probation. If the defendant fails to complete the course, then the court may revoke the defendant’s probation.

Ordinarily, a driver is only required to complete a 3-month alcohol or drug education program when convicted of a first-time offense for driving under the influence. A 3-month education program is much less expensive than a 9-month program.

Thus, to save clients money, a DUI defense lawyer will use the enhancement allegation as a bargaining chip when negotiating the case with the prosecutor.

Please note, this enhancement is only applicable to first-time DUI offenders. If you are convicted of a subsequent DUI offense within 10-years, the court is obligated to impose an 18-month alcohol or drug education program as a term of probation.

4. Driving that resulted in an accident

While no particular statute requires a judge to enhance the penalties for a DUI that involves an accident, most judges will consider this an aggravating factor when sentencing a defendant. A judge may even consider it an aggravating circumstance where the only damage that resulted from the collision was to the defendant’s own vehicle or property.

A judge will usually only require a defendant to complete a few hours of community service when the collision resulted in minimal damage. However, accidents that resulted in significant property damage will often prompt the judge to sentence the defendant to some form of imprisonment in the county jail, even for first-time DUI offenders.

Notwithstanding, a defendant will always be responsible for paying restitution to anyone whose property was damaged as a result of the defendant’s collision.

5. DUI causing injury to another - §23153

A DUI that resulted in bodily injury to another carries much harsher penalties than a simple first-time DUI. A DUI that caused injury to another is a “wobbler” offense, which means the prosecutor can elect to file the DUI charge as a misdemeanor or a felony.

If the case is filed as a first-time, misdemeanor DUI causing injury, then the maximum penalty is 1 year in jail and a $1000 fine.

The defendant will be subject to a mandatory minimum of 90-days in the county jail, unless the court elects to grant the defendant probation. If the court grants probation, the defendant will only be subject to a mandatory minimum of 5 days in county jail.

If, as is often the case, the prosecutor files the case as a first-time, felony DUI causing injury, the defendant faces a maximum of 3 years in prison and a fine of $1,000. The defendant in a felony case would also be subject to the same mandatory minimum penalties as listed in the paragraph above.

4. What evidence can the prosecutor use against you?

There are several key pieces of evidence the prosecutor will use to prove you were driving under the influence. The most important is you BAC level.

Your BAC Level –

Your Driving –

Most DUI investigations are a byproduct of an ordinary traffic stop. Usually, an officer sees a vehicle that violates some kind of traffic law and decides to pull the driver over. Some traffic violations are more suggestive that the driver was under the influence than others.

For example, a driver who is stopped for repeatedly swerving over the lines separating lanes is more likely under the influence than someone who failed to come to a complete stop at a stop sign.

Standard Field Sobriety Tests (FSTs) –

Prior to placing you under arrest, the officer will often have you perform several FSTs “to make sure you are ok to drive.” You should NEVER perform these tests.

Although these tests are designed to evaluate whether someone’s BAC is above the legal limit, they are only accurate approximately 80% of the time.

Moreover, officers will intentionally administer the tests in a way that makes it difficult to score well.

Your Statements –

Contrary to what you may have seen on TV, officers don’t always have to read you your Miranda rights before talking to you. Statements you voluntarily make to an officer may be used against you in court.

Officers often ask defendants where they are coming from and if they have had anything to drink before ever even asking them to step out of the car.

Even if you tell the officer that you only had one drink, the prosecutor will use that as an admission that you were drinking, but that you lied about the amount.

5. What are some common DUI defenses?

There are many defenses a good DUI lawyer can use to defend someone charged with driving under the influence in violation of VC section 23152.

Rising BAC –

As discussed earlier, a prosecutor may charge you with driving under the influence despite your BAC being below the legal limit. In such cases, the prosecutor will argue that by the time the officer had drawn your blood, your BAC had fallen below the legal limit.

Defense lawyers will often use a similar argument whenever the defendant’s PAS results are lower than the results of their chemical test. The rising alcohol defense is premised on the fact that your BAC does not immediately skyrocket after consuming alcohol.

It takes approximately 30-45 minutes for alcohol to be absorbed into the blood stream. Thus, sometimes a chemical test may indicate your BAC was above .08%, when only a few minutes earlier a PAS test indicated your BAC was below .08%.

Wrong Person –

In every DUI case, the prosecutor is responsible for proving that you were the person driving the vehicle beyond a reasonable doubt. But there are some circumstances where it may not be clear who was driving.

When this happens, a good DUI defense lawyer will exploit the uncertainty to create reasonable doubt in the minds of the jurors. Testimony from witnesses and others present at the time of your arrest may help prove you weren’t the person behind the wheel.

Police Misconduct –

Lastly, police misconduct is also a great way to win a DUI case. Officers may not gather evidence in a way that encroaches on your constitutional rights.

Even when an officer acts unintentionally, evidence that is obtained in violation of your constitutional rights must be excluded from trial. Therefore, even if your BAC was triple the legal limit, the prosecutor is unable to use that against you if it was unlawfully obtained.

It is important to remember that every DUI case is different. There are many different factors that play a role in the outcome of a DUI case.

If you or someone you love has been arrested or charged with DUI for violating VC 23152, it is best to contact an experienced and knowledgeable DUI defense lawyer. Don’t let the first time you explain your story be in front of a judge.

Contact An Orange County Criminal Defense Lawyer

John-Patrick Mullen-Lujan is a trusted Orange County DUI defense lawyer that prides himself on his ability to communicate with clients as he helps them navigate our complex criminal justice system.

Attorney Mullen-Lujan was named one of the Best Criminal Defense Lawyers in Orange and Newport Beach. Hire an attorney you can trust and who can provide the zealous advocacy you need.

Contact JPLaw, P.C. to schedule your FREE consultation with local Orange County criminal defense lawyer John-Patrick Mullen-Lujan. Together you will review your case and develop a legal defense strategy tailored just for you!

JPLaw, P.C.

Orange County Law Office

Old Town Orange Office

410 N Clark St.
Orange, CA 92868

Phone: (949) 991-7057

Email: JPLAW22@outlook.com

DUI Charges in California
- Vehicle Code §23152 & §23153 -

Driving Under the Influence
– VC 23152 & 23153

CRIMINAL DEFENSE

1. What is a DMV administrative per se hearing?

2. What is considered "driving under the influence" in California?