Arrested for Vehicle Code 23152 (b) Violation?

California’s DUI laws are split into two (2) sections.  First, we have Vehicle Code 23152 (a).  Second, is Vehicle Code 23152 (b).  This post will focus on California’s Vehicle Code 23152 (a) – Driving Under the Influence of Alcohol and/or Drugs.

The text of the current Vehicle Code section 23152 (b) reads:  “It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

 For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

 In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.”

Big difference in the language, right?  The main difference between Vehicle Code 23152 (b) and Vehicle Code 23152 (a), is that Vehicle Code 23152 (a) requires impairment due to alcohol or drugs.  Vehicle Code 23152 (b) only requires a BAC level above .08% – this is why tolerance doesn’t really matter when it comes to DUI allegations.  What isn’t covered by Vehicle Code 23152(a), is covered by this section.  What this section doesn’t cover, is covered by Vehicle Code 23152 (a).  I’ve seen some individuals with BAC levels 2-3 times the .08% limit, drive better than some “sober” individuals.

Why does this distinction matter?  Vehicle Code 23152 (b) doesn’t require any level of impairment.  There is also nothing in this code section that requires that someone be “drunk” in order to be convicted.

Furthermore, the last paragraph of Vehicle Code 23152 (b) also allows for a a 3 hour window to perform a Chemical Test (Blood or Breathe).  The result of that test, can be used retroactively to presume it was your BAC at the time of driving.  However, there is a logical problem with that.  ALCOHOL DOES NOT REMAIN STEADY IN YOUR SYSTEM.  Alcohol consumption involves an “Absorption” phase, and an “Elimination” phase.  During the absorption phase, alcohol is absorbed by an individual and rate can vary based on a variety of factors, including drinking pattern, weight, height, food consumption, etc.  During this phase, a person’s BAC level rises based on these factors, until it eventually plateaus.  After period of plateau, usually about 20 minutes, BAC level begins to fall as it is eliminated from the body.

So, this is the most common arrest scenario I see:  After having dinner, John Smith gets ready to go home.  John had a couple of beers with Dinner, but was only at the restaurant for about an hour.  John feels fine.  His friends and family don’t see a difference in his judgment or senses.  John lives 5 minutes away from the restaurant.  Upon leaving the parking lot, John gets pulled over by an Officer who is waiting across the street, watching the restaurant parking lot.  He gets pulled over because he forgot to use his turn signal when exiting.  The Officer asks John several question and has John perform several Field Sobriety Tests.  John gets arrested for DUI.  John must now submit to a Chemical Test or risk losing his license for up to 1 year for refusing to do so.  John submits to a Blood test.  After being arrested, John is transported to the Jail for booking/processing, and blood testing.  Finally, 2 hours after John left the restaurant and was pulled over, his blood is drawn and submitted to lab for testing.  John’s results come to a BAC level of .09%.

So, what was John’s BAC level at the time he was pulled over?  What about during the Police questioning?  Who knows, but it likely wasn’t anywhere near .09%, given the length of time between the time he was stopped and the time of his blood test.  Now, even though John would have been home well before  the Officer finished his investigation, John now faces serious allegations of DUI – likely alleging violation of both, Vehicle Code 23152 (a) and Vehicle Code 23152 (b).

So, if you go out to celebrate a birthday, graduation, etc., make sure you have a designated driver or you could be facing harsh consequences if convicted of a violation of Vehicle Code 23152 (a) and/or Vehicle Code 23152(b).

The difference between Vehicle Code 23152 (a) and 23152 (b), is simple.  To be found in violation of Vehicle Code 23152 (a), you must be proven to be driving, on a roadway, and impaired due to drugs or alcohol.  To be found in violation of Vehicle Code 23152 (b), your BAC must be above .08%, at the time of driving.  There are several Constitutional, Statutory and Scientific defenses that may apply to any given case.

If you, or someone you know, has pending charges alleging a violation of Vehicle Code 23152 (a) or Vehicle Code 23152 (b), contact DUI Attorney Matthew Murillo for expert DUI defense.  Your license (and potentially livelihood) may depend on it.