California Misdemeanor DUI Law & Defense
Vehicle code section 23152
Information on the crime of driving under the influence of alcohol or drugs (DUI) is found at California vehicle code sections 23140, 23152 and 23153.
With few exceptions, misdemeanor DUI charges are usually charged under VC 23140 (underage DUI crimes), VC 23152(a), and/or VC 23152(b).
Felony DUI charges are usually charged under VC 23153(a) or VC 23153(b). This article is a summary of the law, the punishments, and the defenses related to misdemeanor DUI charges filed under VC 23152(a) and VC 23152(b).
For information on underage DUI charges (VC 23140), or felony DUI charges (VC 23153), please visit felony DUI information.
Misdemeanor DUI Charges
VC 23152(a): It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.
VC 23152(b): It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
VC 23152(a) and 23152(b) are the most commonly charged DUI crimes in California. Both charges may be classified as either a misdemeanor or as a felony; however, felony DUI allegation are more commonly charged under VC 23153 (See VC 23153 for more information on felony DUI crimes).
Ninety percent (90%) of all DUI allegations are classified as misdemeanors. Misdemeanor DUI charges are alleged when the arresting officer believes the defendant is driving under influence of drugs or alcohol but...
- The alleged DUI did not result in an accident with injury or death,
- The defendant has not previously suffered a felony DUI conviction within the last ten years, or
- The defendant has not previously suffered at least three misdemeanor prior DUI convictions within the last ten years of the date of arrest
Note: Often times both charges are listed on the defendant's citation because there is a difference between the two DUI charges.
With VC 23152(a), the defendant may be charged with a DUI even if his or her blood alcohol concentration (BAC) is below 0.08%. This is because any measurable amount of alcohol in the defendant's blood can sustain a DUI conviction if that amount of alcohol impaired the defendant's ability to safely drive a vehicle.
VC 23152(b) is charged when the defendant's BAC at the time of driving measures 0.08% or more (by blood, breath, or urine analysis). If the defendant's BAC is 0.08% or more at the time of driving the judge or jury is allowed to presume that the defendant's ability to safely drive a vehicle is impaired and no proof of actual impairment is required (only proof of the defendant's minimum BAC level). This is why VC 23152(b) is also called the per se count, meaning that the defendant is guilty of DUI without proof of impairment so long as the district attorney proves a BAC of 0.08% or more while driving.
Note II: The DMV does not charge the defendant with a crime (prosecutors charge DUI allegations in criminal court); however, if a law enforcement agency forwards a report of a DUI citation for VC 23152(b) [aka the per se count] the DMV will hold a hearing to determine if the defendant more likely than not committed DUI. More on DMV hearings and penalties associated with DUI below.
IMPORTANT: You only have ten (10) days from the date of arrest for DUI to contact the DMV to schedule a hearing concerning your continued privilege to drive.
Other common misdemeanor DUI charges include:
- VC 23152(e): driving under the influence of drugs
- VC 23140: underage driving under the influence of alcohol. The BAC limit at the criminal court is 0.05% and zero tolerance at the DMV hearing
- VC 23154: DUI by person on probation for DUI. The BAC limit is 0.01% while on probation for a prior DUI
- VC 23103(a): reckless driving (dry reckless)
- VC 23103.5(a): wet reckless
- VC 23152(d): DUI for commercial drivers. The BAC limit is 0.04% for class A commercial drivers when driving a commercial vehicle
- VC 23578: Enhancement to the DUI charge for BACs above 0.15% or refusal to take a chemical test
Note III: According to California DUI law, a vehicle includes golf carts, off-road vehicles, and motorized scooters.
Sentence & Penalties for misdemeanor DUI
For a first offense DUI conviction, the defendant could be sentenced up to 180 days in county jail. This jail sentence applies to most misdemeanor DUI crimes, including VC 23152(a), 23152(b), 23152(e), and 23152(d). Underage DUIs filed under VC 23152 can be charged as misdemeanors or as infractions.
For a second offense DUI conviction committed within ten years of a first DUI, the defendant could be sentenced up to 1 year in the county jail. This jail sentence applies to all second offense misdemeanor DUI crimes within ten years, except that underage DUI charged under VC 23140 may be charged as an infraction.
For a third offense DUI conviction committed within ten years of two prior DUI convictions, the defendant could be sentenced up to 1 year in the county jail. This jail sentence applies to all third offense misdemeanor DUI crimes within ten years except that underage DUI charged as VC 23140 may be an infraction.
For a fourth offense DUI committed within ten years of three prior DUI convictions the defendant is usually charged with a felony under VC 23152 or 23153. Felony DUIs are beyond the scope of this article.
In addition to a possible jail sentence, if convicted of any DUI, the defendant will be ordered to pay mandatory minimum court and penalty fines. The defendant will be ordered to take DUI classes and may be ordered to stay away from bars. Also, a judge could order that the defendant install an interlock ignition device (IID) on his or her vehicle.
In some cases, the defendant will qualify for a probation sentence in lieu of jail, or a sentence that may be served by house arrest (electronic monitoring), or work release.
Probation in lieu of jail is common in misdemeanor DUI cases, but that does not mean that the probation sentence is a sentence without a house arrest or work release requirement. In fact, for a second offense DUI, there is a mandatory minimum sentence of four days and for a third offense DUI there is a mandatory minimum sentence of one hundred twenty days. Those mandatory minimum must be served, but as stated, they are usually served outside of jail through an alternative to jail sentence.
If the defendant receives a probation sentence for first offense DUI there is a mandatory minimum sentence of two days, which is sometimes deemed already served by the fact that the defendant was booked into jail after the DUI arrest.
Collateral penalties for DUI
In addition to the penalties and sentence that a judge may order for a DUI conviction, other collateral penalties may apply. These penalties include: a suspension of your driving license, negative consequences for professional licenses, such as doctors, dentist, and nurses, adverse immigration consequences, requirements by the DMV to obtain insurance (SR-22), adverse consequences in family law proceedings (especially for a stepparent in stepparent adoptions), and more.
Department of Motor Vehicles (DMV) penalty
The DMV hearing, or admin per se hearing, is concerned with your privilege to drive. You have only ten days from the date of arrest or citation for DUI to contact the DMV to schedule a hearing to save your driving privilege. The DMV is only concerned with DUIs with a BAC of 0.08% or more. If the DMV is able to prove that you were driving a motor vehicle with a BAC of 0.08% or more, and that you were lawfully arrested, the DMV will suspend you license. If you lose the DMV hearing the length of suspension on your privilege to drive will be determined by the number of prior DUIs you have within the last ten years and whether or not you refused to take a chemical test. DMV defense for DUI is beyond the scope of this article; however, if you are charged with a DUI be sure to contact a DUI lawyer without delay to help your with this complicated process.
Defense to misdemeanor VC 23152 crimes
There are literally dozens of defenses that might apply to a typical DUI charge. Every DUI is different and therefore the defense to every DUI is different. Common defenses to DUI include, but are not limited to:
- suppression of BAC evidence for police misconduct or no Probable Cause to arrest
- improper administration or recording of field sobriety test
- improper administering of scientific equipment by police, or improper collection and analysis of evidence at the laboratory
- inconsistent results of scientific evidence
- lack of maintenance of the scientific equipment used to gather and register BAC levels
- lack of evidence of driving
- loss or destruction of evidence
- inconsistent testimony or statements by police or witnesses or unavailability of either
- plea bargain for a lower charge or lighter sentence, typically a lower charge is wet reckless or dry reckless, which carry less penalties and are available in cases where the BAC is under or near the legal limit
Our DUI lawyers have successfully handled hundreds of DUI charges and DMV hearings. We have a strong and proven success rate with all misdemeanor and felony DUIs, including VC 23152(a), 23152(b), 23152(d) [commercial class A DUI], 23152(e), and 23140 [underage DUI] crimes.
In addition to DUI defense we offer post-conviction relief to defendants trying to clear warrant, defend against a violation of DUI probation, expunge a prior DUI from a defendant's criminal history, terminate a DUI probation early, or seal and destroy a DUI arrest.
Call today for your private DUI case evaluation. There is no fee for the consultation. Call today
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Misdemeanor DUIs & Related Crimes
- VC 23152(a) Driving under the influence of alcohol
- VC 23152(b) Driving under the influence of alcohol above 0.08% BAC
- VC 23152(e) Driving under the influence of drugs
- VC 23103.5(a) Wet Reckless
- VC 23578 Enhance DUI for BAC above 0.15% or refusal to take chemical test
- VC 23222 Open container containing alcohol
- VC 23612 Implied consent to submit to a chemical test
- VC 20002(a) Hit and Run while DUI
- VC 2800 Evading Police to avoid a DUI citation
- PC 148 Obstruction of justice during a DUI arrest
- PC 529 False Personation during a DUI citation
- VC 12500 Driving without a license
- VC 14601.2(a) Driving on a suspended license with DUI
- VC 14601.1(a) Driving with a suspended license
- VC 23221 Drinking while driving but not DUI
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Did you know?
- There are approximately 200,000 arrest for DUI in California every year
- Approximately 10% of all DUIs are classified as felony DUI
- One felony DUI conviction, without any other criminal history, can be used against you in a federal immigration deportation proceeding
- One felony DUI conviction, without any other criminal history, can be used agaisnt you in professional licensing discipline proceedings
- You have only ten days from the date of citation or arrest in which to contact the DMV to schedule a hearing concerning your continued privilege to drive
- DUI classes for a first offense are usually three or four months depending of the county of conviction, but they can be as long as nine months for DUIs with enhanced (High) BACs (VC 23578)
- DUI Classes for a second DUI offense (or more) within ten years requires the defendant to attend at least eighteen (18) months of DUI classes
- A restricted license may be offered to persons who lose the DMV hearing. The restriction is that you can only drive to work, or anything reasonably related to work, and DUI classes
- In Los Angeles county, the district attorney is currently running a pilot program, the program requires every person convicted of a DUI, even for a first offense DUI conviction, to install a interlock ignition device (IID) on his or her vehicle as a term of probation. The IID must be installed for at least five months
- An SR-22 is a special type of insurance that serves as surety bond. It is required for all drivers convicted of a DUI and must be carried for the term of probation, which is three years in most circumstances
- S.C.R.A.M. stands for secured continuous remote alcohol monitoring. It is a device that you wear around your ankle as part of a DUI probation in some cases and it detects both location of the defendant and the defendant's BAC as indicated by the defendant's sweat.
- There are mandatory minimum sentences that judge must order for the defendant if the defendant is place on probation in lieu of actual jail. The mandatory minimum sentence for a first DUI is 2 days, for a second DUI its 4 days, and for a third DUI it jumps to 120 days. These sentences are usually carried out by way of house arrest (electronic monitoring) or work release.
- A wet reckless is never charged against a defendant in an accusatory pleading. A wet reckless is available only through a plea bargain with the DA. A wet reckless carries many of the same penalties as a DUI but the fines are less and the charge looks a lot better for purposes of employment than a full DUI.
- The look-back time for DUIs is ten years for both the criminal court and the DMV. This means that if you are cited for DUI within ten years of prior DUI any conviction will be considered a subsequent DUI (a second, third, fourth, etc.)
- Most people cited for DUI are cited for two DUIs at once, VC 23152(a) and 23152(b); however, if convicted of both, the defendant can only be sentenced under one charge or the other
- Underage DUI charges are usually charged under VC 23140, which can actually be charged as an infraction or a misdemeanor
- A Hardship Waiver may be obtained for some underage drivers (under 21) who are convicted of DUI. A Hardship Waiver may allow young defendants to drive to work, DUI classes, and school
- The DMV and the criminal court judge may both suspend the defendant's privilege to drive upon a conviction for VC 23152(a) or VC 23153(b). The suspensions may run consecutive to one another and the defendant may be ordered to pay two (2) reinstatement of the privilege to drive fees with the DMV