Navigating California’s Primary DUI Law (VC 23152)

Being arrested for a DUI is a serious, life-altering experience. For many, the process begins with hearing a citation that sounds like a complicated string of numbers and letters: Vehicle Code Section 23152 (VC 23152). This is the most crucial statute in California’s drunk driving laws. It defines what a DUI actually is.

Understanding this law is your first and most essential defense step. VC 23152 doesn’t just represent one crime, but rather a dual set of charges the prosecution can—and often will—file against you. These two primary subsections, VC 23152(a) and VC 23152(b), work together to cover every base of impaired driving. We’re going to break down these charges so you can fully grasp the legal challenge ahead.

What is Vehicle Code Section 23152 in California?

VC 23152 is the foundational legal text in California that criminalizes driving under the influence of alcohol and/or drugs. It is the section of the California Vehicle Code (CVC) used by prosecutors to charge the vast majority of misdemeanor DUI cases. Essentially, this statute ensures that a driver can be charged whether the prosecution focuses on impairment or on the amount of alcohol in their system.

This single code section is divided into multiple subsections, but the two most common charges an average driver will face are found in subsections (a) and (b). Understanding the difference between these is key, as they represent two distinct legal theories the prosecution can use to secure a conviction. Because of this dual nature, it’s entirely normal to be charged with both for a single driving incident.

VC 23152(a) focuses on the act of driving while “under the influence.”
VC 23152(b) focuses on the measurable amount of alcohol in your blood.

What Are the Elements of Driving Under the Influence (VC 23152(a))?

VC 23152(a) is often called the “general DUI” or “impaired driving” charge. This statute makes it illegal for any person who is under the influence of any alcoholic beverage to drive a vehicle. Unlike its counterpart, this charge does not strictly rely on your Blood Alcohol Content (BAC) being at or above a specific number. You can be charged and convicted under VC 23152(a) even if your BAC is below the legal limit of 0.08%.

To successfully convict you under this subsection, the prosecution must prove two core elements beyond a reasonable doubt:

You drove a vehicle.
When you drove, you were under the influence of an alcoholic beverage.

Defining “Under the Influence”

The term “under the influence” has a specific legal meaning in this context. It doesn’t just mean you consumed alcohol; it means your mental or physical abilities are impaired to a degree that you are no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

This impairment can be demonstrated through various forms of evidence, often gathered by the arresting officer at the time of the stop.

Officer Observation: Erratic driving (weaving, speeding, driving too slowly), the odor of alcohol, bloodshot or watery eyes, slurred speech, and an unsteady gait.
Field Sobriety Tests (FSTs): Alleged poor performance on tests like the Horizontal Gaze Nystagmus (HGN), Walk-and-Turn, and One-Leg Stand.
Admissions: Any statements you made to the officer regarding your drinking.

The focus here is on observable impairment. This makes the charge inherently subjective, meaning its defense often involves challenging the officer’s subjective observations and the circumstances under which they were made.

How Does the “Per Se” Law (VC 23152(b)) Differ from the General DUI?

Vehicle Code 23152(b) is the “per se” DUI law, meaning “by itself” or “in and of itself.” This is an objective standard and is the charge most people think of when they talk about the “legal limit.” This subsection makes it unlawful for any person who has 0.08 percent or more, by weight, of alcohol in their blood (BAC) to drive a vehicle.

The legal elements for conviction under this subsection are much simpler, focusing purely on measurable data:

You drove a vehicle.
When you drove, your BAC was 0.08% or greater.

The Significance of the 0.08% Threshold

The 0.08% limit is a fixed line. If your chemical test (blood or breath) results show a BAC at or above this number, you have technically violated VC 23152(b), regardless of whether you appeared to be driving safely or whether the officer thought you were actually “impaired.”

This is why it’s called “per se”—the high BAC level alone constitutes the crime.

Objective Evidence: The case hinges almost entirely on the accuracy and reliability of the chemical test (breath, blood, or sometimes urine).
Challenging the Test: Defense strategies for a VC 23152(b) charge often involve scrutinizing the testing procedures, equipment calibration, chain of custody for blood samples, and the timing of the test relative to the time of driving.

Who Faces a Lower BAC Limit?

It’s important to note that the 0.08% limit is for most adult drivers. Lower BAC limits apply to specific groups:

Commercial Drivers: A limit of 0.04% or higher (VC 23152(d)).
Drivers Under 21: A near zero-tolerance limit of 0.01% or higher (VC 23136, though not part of 23152).
Drivers Transporting a Passenger for Hire (like Uber/Lyft): A limit of 0.04% or higher (VC 23152(e)).

Can I Be Charged With Both VC 23152(a) and VC 23152(b) Simultaneously?

Yes, absolutely. In almost every alcohol-related DUI case where the driver’s BAC is 0.08% or higher, the prosecutor will file two separate counts: one for VC 23152(a) (impaired driving) and one for VC 23152(b) (driving with 0.08% or more BAC).

The Strategic Reason for Dual Filing

The prosecution uses this dual strategy to improve their chances of securing a conviction.

A Safety Net: If the defense successfully challenges the reliability of the BAC test (the objective evidence for 23152(b)), the prosecutor still has the VC 23152(a) charge, which relies on the officer’s testimony about subjective impairment.
Another Path to Guilt: Conversely, if the defense argues the driver was not impaired (challenging 23152(a)), the BAC test alone (if 0.08% or higher) is sufficient to convict on 23152(b).

While you may be charged with two counts, you will only be convicted and punished for one DUI offense. If convicted on both, the two charges “merge” into a single DUI conviction for sentencing purposes.

Does VC 23152 Cover Drugged Driving (DUI-Drugs)?

VC 23152 also explicitly covers DUI-Drugs (DUID).

VC 23152(f): This subsection makes it unlawful for a person who is under the influence of any drug to drive a vehicle. Like 23152(a), this charge is based on impairment, but by a drug instead of alcohol.
VC 23152(g): This section prohibits driving while under the combined influence of an alcoholic beverage and a drug.

For DUID cases, since there is currently no “per se” legal limit for most drugs comparable to the 0.08% BAC for alcohol, the charge almost always relies on the subjective impairment standard. This typically involves testimony from an officer trained as a Drug Recognition Expert (DRE) and blood test evidence showing the presence of drugs. The challenge for the prosecution is not just proving the drug was in your system, but that it impaired your ability to drive safely.

What Are the Penalties Associated with a VC 23152 Conviction?

A first-time misdemeanor conviction under VC 23152 carries significant and mandatory penalties. These consequences are severe and are designed to deter drunk driving, affecting your freedom, finances, and driving privileges.

Penalties typically include:

Jail Time: A minimum of 96 hours up to six months in a county jail, though a first offense is often reduced or suspended in favor of probation.
Fines and Fees: Substantial fines, which can easily total several thousand dollars after penalty assessments.
Probation: Typically three to five years of summary (informal) probation, requiring you to follow all court-ordered terms.
DUI School: Completion of a state-mandated alcohol and/or drug education program (usually three to nine months long).
License Suspension: A six-month suspension of your driving privilege by the court, often running concurrently with a four-month administrative suspension by the DMV. You may be eligible for a restricted license or Ignition Interlock Device (IID).
IID Installation: Mandatory installation of an IID in your vehicle for a set period, even for first-time offenders in some California counties.

Aggravating Factors

The penalties become much harsher if there are aggravating factors involved in the offense, which can elevate a misdemeanor to a felony:

Having a prior DUI conviction within the last 10 years.
Causing an injury to another person (charged under VC 23153).
Driving with a child under 14 in the vehicle.
Refusing to submit to a chemical test.
Having an extremely high BAC (e.g., 0.15% or 0.20% or higher).

Can an Experienced Lawyer Challenge a VC 23152 Charge?

Yes, a skilled defense attorney can challenge a VC 23152 charge, often using a multi-faceted approach to attack both the VC 23152(a) and VC 23152(b) counts. The complex nature of this law, with its reliance on both subjective observations and scientific tests, provides several avenues for a strong defense.

Potential defense strategies include:

Challenging the Initial Stop: Arguing that the law enforcement officer lacked reasonable suspicion to initiate the traffic stop in the first place, which can lead to the suppression of all evidence gathered afterward.
Contesting Impairment (VC 23152(a)): Demonstrating that the symptoms of intoxication (unsteady gait, bloodshot eyes) were due to other factors, such as fatigue, allergies, or a medical condition, or that the Field Sobriety Tests were improperly administered.
Attacking the BAC (VC 23152(b)): Questioning the accuracy of the breath or blood tests, including equipment malfunction, improper calibration, mishandling of blood samples, or the “Rising BAC” defense (arguing the BAC was below 0.08% at the time of driving and rose after the stop).
Challenging “Driving”: In some cases, questioning whether the defendant was actually “driving” or had volitional movement of the vehicle as legally required.

Conclusion: Don’t Face VC 23152 Alone

California Vehicle Code Section 23152 is the powerful statute the prosecution uses to hold people accountable for driving under the influence. Whether you are charged with the subjective crime of impairment (VC 23152(a)) or the objective crime of exceeding the 0.08% BAC limit (VC 23152(b)), the stakes are incredibly high.

These charges demand a sophisticated legal defense that understands the nuances of the law, the science behind BAC testing, and the procedural rules governing police conduct. Simply pleading guilty is rarely your best option.

If you or a loved one has been charged under VC 23152, you need immediate, expert legal representation to protect your rights, your license, and your future. Contact The Win Law Firm today for a confidential consultation. Our experienced team is ready to analyze your case and build the strongest possible defense.

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Always consult a licensed attorney for guidance specific to your case.

Frequently Asked Questions (FAQ)

What is the difference between VC 23152(a) and VC 23152(b)?

VC 23152(a) is the “under the influence” charge, which focuses on impairment. The prosecution must prove that your physical or mental abilities were so impaired by alcohol that you couldn’t drive with the caution of a sober person. This charge is subjective and relies on officer observations and FSTs. VC 23152(b) is the “per se” charge, which focuses on the measurable BAC. The prosecution must prove your Blood Alcohol Content (BAC) was 0.08% or greater at the time of driving. This charge is objective and relies on chemical test results (breath or blood). You are typically charged with both.

Can I get a DUI if my BAC is below 0.08%?

Yes, you can. Even if your BAC is below 0.08% (for example, 0.06%), you can still be charged and convicted under VC 23152(a). This is because the VC 23152(a) charge is based on actual impairment, not just the BAC number. If the prosecution can prove that the alcohol you consumed impaired your ability to drive safely, the low BAC alone is not a defense against that charge. This is a crucial point many people misunderstand.

What is the 10-day rule after a DUI arrest?

The 10-day rule refers to the Administrative Per Se (APS) suspension of your driving privilege by the California Department of Motor Vehicles (DMV). When arrested for a DUI, the police confiscate your physical license and give you a temporary one. You have only 10 calendar days from the date of your arrest to contact the DMV and request a DMV Administrative Hearing to contest the automatic license suspension. Failing to request this hearing within the 10-day period will result in your license being automatically suspended after 30 days.

What does “volitional movement of a vehicle” mean in a DUI case?

“Volitional movement of a vehicle” is a key element that the prosecution must prove for a VC 23152 conviction. It means the driver must have intentionally caused the vehicle to move, even if the movement was slight. California is not a “physical control” state, meaning merely sitting in a stationary car with the engine running may not be enough to prove “driving.” The defense often challenges this element if a client was found asleep in a parked car, for example, especially if there is no proof of recent, intentional movement.

How long does a VC 23152 conviction stay on my record?

A DUI conviction under VC 23152 will generally stay on your driving record for 10 years in California. This is critical because any subsequent DUI offense within that 10-year period will be treated as a prior offense, leading to significantly harsher penalties, even mandatory jail time. While the conviction may remain on your criminal record indefinitely, its “priorability” for enhanced sentencing purposes lasts for a decade.