California is one of the states with the strictest DUI laws. This means that it aggressively prosecutes defendants for violating these laws. Understanding these laws helps you avoid committing a DUI offense and know what to do should you be arrested. One of the most critical steps you should take when arrested is calling a DUI criminal defense attorney.

The LA Criminal Defense Law Firm has DUI criminal defense attorneys who can provide valuable legal services if you’re facing DUI charges. We dedicate our time and efforts to handling these cases to provide our clients with the best possible outcome. Reach out to us as soon as possible to discuss your case further and develop strategies to help you. In the following sections, we will cover DUI laws that apply to California drivers.

Standard DUI and Per Se DUI Laws

California State has two primary drunk-driving laws for grown-up drivers. These are Vehicle Code (VC) 23152(a), which illegalizes driving while intoxicated with alcohol, and VC 23152(b) that makes it unlawful to operate an auto with a blood alcohol concentration (BAC) of 0.08%. Most persons placed under arrest for drunk-driving in California are usually prosecuted under both of these laws.  The consequences of DUI vary based on two primary factors:

  • The driver’s criminal history
  • The factors surrounding the case

VC 23152(a) is the standard law on driving under the influence. ‘Under the influence’ means your mental or physical abilities are impaired to the point that you can’t operate an auto as properly as a careful, sober driver would do. You could be charged under this law in California, even if your BAC was less than .08%.

VC 23152(b) is the DUI per se law. As per this law, any person who drives with a .08% or more BAC is deemed intoxicated/under the influence.  .08% is the legal limit for BAC in California. ‘Per se’ is a Latin phrase that means ‘in itself.’ Having a BAC of .08% or more is per se DUI since it’s considered a violation of the law in and of itself. In this case, the prosecution doesn’t need to show that your driving was indeed impaired. In other words, you may be convicted even if you were not impaired while driving.

However, note that the .08% or more per se BAC limit applies only to adult non-commercial drivers. For commercial motorists, the per se BAC limit is .04%, while for underage drivers is .05%.

California’s Implied Consent Law

The implied consent law makes it compulsory for any motorist in California, who is legally under arrest for driving under the influence, to undergo breath testing to determine their BAC. A motorist who breaks this law, that is, declines to undergo breath testing) will face various penalties, including:

  1. A compulsory driving privilege suspension, which occurs irrespective of the verdict in a driver’s DUI case, and
  2. Enhanced penalties to add on the standard DUI punishments. The enhanced driving-while-intoxicated consequences for refusal to take a breath test are:
  • For first DUI offenders, additional forty-eight hours in jail and at least nine months of DUI school (instead of the usual three-month DUI program for first DUI offenses that do not involve refusals),
  • An additional ninety-six hours in jail for second DUI offenders,
  • An additional ten days in jail for third DUI offenders,
  • An additional eighteen days in jail for fourth and subsequent DUI

The implied consent statute is questionable as far as chemical testing is concerned following a legal DUI arrest. In the past, this law applied to drunk-driving blood tests and breath testing. The United States’ Supreme Court suggested (in the Birchfield v. North Dakota case) that offenders may not be punished for declining to submit to blood testing in situations where the law enforcement officer hasn’t obtained a legal warrant.

However, the court’s decision touched states that consider a separate offense for a driver to decline to undergo DUI blood testing after a lawful arrest. California, on the other hand, only imposes additional punishments on DUI offenders for refusing to submit to chemical tests. Thus, it remains the courts’ decision if this is also unconstitutional, and therefore, if California’s implied consent law can’t be applied to DUI blood testing.

Conditions Under Which Law Enforcement Officers Can Want a Driver to Do a DUI Blood Test

We have three circumstances under which a police officer can require you to undergo a DUI blood testing. They are when there’s:

  • A legal warrant to administer the test,
  • Suspicion of driving under the influence of drugs, and
  • A suspicion of felony DUI

A warrant for Chemical Testing: A police officer can require you to perform a DUI blood test when he/she has a warrant for it. The judge issues the warrant, which gives legal approval for a chemical DUI test.

Suspicion of driving under the influence of drugs: An officer may require you to undergo DUI blood testing if he/she has a reason to suspect that the test results would indicate drug presence in the blood. An officer can have reasonable suspicion by reading your statements, observing objective signs & symptoms of drug intoxication, and looking at the physical proof of drug use.

A suspicion of felony DUI:  A police officer might use a forced draw of your blood for DUI chemical testing when he/she suspects a felony drunk-driving, but a warrant can’t be obtained quickly. A DUI is charged as a felony offense when:

  • It results in injury,
  • The offender has three/ more wet reckless or DUI convictions in the past ten years, and
  • The offender has, at the minimum, one previous felony drunk-driving conviction.

It’s worth noting that the implied consent law only applies to a breath testing after a legal DUI arrest. By this, it means a motorist can still decline to submit to a roadside (PAS) breath testing before an arrest occurs. There are no consequences for refusing to perform a PAS testing unless a driver is on probation for a past DUI conviction or below twenty-one years old.

Additionally, provided a motorist is on probation for DUI or below twenty-one years, refusing to submit to a PAS test might not be admitted as proof of guilt during trial. Note, however, that if a motorist agrees to take the PAS test, the test results can be admitted into evidence to help convict them of DUI.

There’s one common legal defense that you can present if you’re prosecuted for a DUI chemical test refusal. The defense is to argue that your arrest wasn’t legal. An arrest isn’t lawful if the police didn’t have reasonable suspicion or probable cause to pull you over or arrest you for DUI. If the arrest wasn’t legal, then it means you never gave implied consent to a DUI breath testing. And if the defense is successful, the judge may dismiss the entire drunk-driving case.

Note that the implied consent law applies to all motorists in California. These include California residents with the state’s driver’s license and non-state residents with an out-of-California license.

Underage Law on Drunk-Driving

California has two primary laws to regulate underage DUI. They are Vehicle Code (VC) 23136 Zero Tolerance law and VC 23140 under 21 vehicle operation with a blood alcohol content of .05% or more.

  1. Zero Tolerance Law (VC 23136)

VC 23136 is the zero-tolerance law on driving under the influence. The legislature enacted this statute in the year 1994 to tame the underage DUI issue. VC 23136 prohibits any individual below the drinking age of 21 yrs from operating a vehicle with a blood alcohol content of 0.01 percent or more after drinking any alcoholic beverage. Note that even a slight alcohol quantity can elevate your blood alcohol content from 0% to .01 percent very fast. And when it comes to VC 23136 purposes, an alcoholic beverage involves alcohol obtained from any sources and not alcoholic drinks alone. Besides alcoholic beverages, alcohol may also originate from homeopathic medicines, cough syrups, & nighttime cold medicines like Nyquil.

In a standard driving-while-intoxicated offense, the BAC level is determined by the post-arrest drunk-driving chemical (breath & blood) test. Under the zero-tolerance law, the BAC level can be established by a PAS (preliminary alcohol screening) test. A PAS test is a breath test conducted by the roadway after an arrest. It is administered on a Breathalyzer.  The Breathalyzer measures the alcohol in the motorist’s breath and mathematically converts it to a roughly equal amount of blood alcohol.

For drivers twenty-one years and more, taking the roadside test is optional.  However, drivers below twenty-one are assumed to have agreed to a roadside test if suspected of driving under intoxication. This means if you’re under twenty-one years and are pulled over for driving under the influence and decline to take the PAS test, then the California DMV (Department of Motor Vehicles) will automatically revoke or suspend your driving privilege for a year. If your driving privilege is suspended due to your refusal to submit to the PAS test, you won’t qualify for a restricted hardship license.

You Can Be Prosecuted Under the Zero Tolerance Law and Any Other DUI Law

The law mostly prevents the accused from facing a sentence for more than one DUI offense for similar behavior. Put otherwise, you could only be found guilty of either VC 23152(a) driving while intoxicated with alcohol or VC 23152(b) operating a vehicle with a blood alcohol concentration of .08% or higher, but not all.

But Vehicle Code 23136 law is an exception to this rule. In case the blood alcohol content is higher enough, or you’re impaired when driving, you might be found guilty of violating both the zero-tolerance statute and other DUI laws. Also, you might be prosecuted under more than one DUI law apart from VC 23136 zero-tolerance law, although you eventually can be found guilty of only one.

Breaking VC 23136 law isn’t a crime. Instead, it’s a considered civil violation. The only consequence for breaking the zero-tolerance statute is for the DMV to revoke or suspend your driving privilege. This is what’s called an APS (administrative per se) suspension. In case you don’t have the privilege to drive at the time you violated VC 23136, you will be subjected to a twelve-month delay in being granted it.

When you’re cited for breaking VC 23136 law, the law enforcement officer will confiscate your license (assuming you have it) and mail it to the DMV. The police will then issue you with a temporary driver’s license, which you can use for only thirty days. When the thirty-day period ends, your license revocation/suspension will automatically be effected, unless, in ten days of being cited, you demand a DMV hearing to contest the suspension/revocation. You could also request this hearing if your privilege to drive was revoked/suspended for refusing to do to a chemical or PAS test.

Note that you can be charged for violation of the zero-tolerance law even if you are not actually impaired by alcohol when driving. An underage motorist violates this law by merely operating the vehicle with a BAC content level of 0.01%.

  1. Underage DUI With a Blood Alcohol Concentration  Level of 0.05% or More (VC 23140)

VC 23140 law makes it illegal for anyone below the age of twenty-one to operate an automobile with a blood alcohol content of 0.05% or more. After being arrested for driving while intoxicated while underage, BAC is usually confirmed by post-arrest drunk-driving chemical testing. This is either a breath or blood test. The breath test is generally performed at the station on a desktop device.

Violating VC 23140 is charged as an infraction.  An infraction is a lowly-ranked crime, the same as a parking ticket. Consequently, violating VC 23140 statute won’t result in a jail sentence. Instead, the penalties include up to 100 in fines(for first-time offenders), driving privilege suspension for a year (first-time offenders), and a compulsory alcohol school program for three or more months (if the motorist is eighteen years old at the minimum).

Refusal to take a Preliminary Alcohol Screening test or the post-arrest drunk-driving test will lead to a suspension of the underage driver’s driving privilege of a year at the minimum. The DMV could also suspend it for two or more years if the motorist has a single or several previous convictions for refusal to undergo chemical testing for a drunk-driving/wet reckless offense under VC 23103.5.

Like it is under zero-tolerance law, an underage driver has the legal right to contest a suspension/revocation of his/her license, including that of chemical testing refusal. For him/her to do this, they have to request a DMV hearing. Note that this DMV hearing isn’t automatic. The motorist should demand it within ten days of his/her being charged with VC 23136 violation or chemical testing refusal. This hearing is usually via the phone, except if the driver demands that the DMV hold it in person. A lawyer may represent the motorist at this hearing and may generally handle the entire process on the motorist’s behalf.

If you win this hearing, the DMV will cancel the revocation or suspension of your license. However, even if you lose, all isn’t necessarily lost. You may then:

  1. Appeal the DMV hearing officer’s ruling (by presenting a written request and a fee of a hundred and twenty dollars within fifteen days from the effective date of the notice of the hearing officer’s decision, or
  2. Ask for a restricted ‘critical use’ license. This is a special license that’s the same as a learner's permit. It enables you to operate to & from school or work if there’s no other alternative transportation means available. However, this kind of license isn’t available if the revocation/suspension occurred due to chemical testing refusal.

When the license suspension period ends, you can have your privilege to drive reinstated by:

  • Filing an SR-22 proof of financial responsibility
  • Paying a $125 reissue fee to the DMV
  • Maintaining proof of financial responsibility for three years.

Just like under zero-tolerance law, you can be prosecuted under VC 23140 law even if your driving isn’t alcohol-impaired. You violate this law by merely operating an auto with a BAC level of 0.05%.

Commercial DUI Law (VC 23152(d))

If you have a commercial driver’s license and you operated a commercial auto while intoxicated with alcohol, you could face commercial DUI charges under VC 23152(d), amongst other related crimes. To be found guilty of violating this law, your BAC must have been .04% or more at the exact time you operated a commercial automobile.

Commercial drivers are held at much higher safety standards than non-commercial drivers, so they are subject to much harsher penalties when they violate DUI statutes. One of these punishments is the revocation or suspension of their commercial and non-commercial license. As per VC 15300, a commercial driver convicted of a first DUI offense will have their license suspended for one year.  And as per VC 15302, a commercial driver found guilty of a second offense DUI will have the commercial driver’s license suspended for life.

As per VC 13352, Revocation/Suspension for Speed Contest or DUI, if a commercial driver was operating a commercial auto while drunk, their non-commercial privilege to drive will be revoked or suspended.

There are several legal defenses you claim to raise to challenge commercial DUI charges. They include:

  • You did not operate the vehicle.
  • The police didn’t have any probable cause to pull you over or arrest you for DUI.
  • The law enforcement officer did not advise you fully & clearly of your rights.
  • The BAC testing equipment was not working properly.
  • The BAC test results were within the margin of error for an acceptable result.
  • The person administering the BAC test did not follow proper testing procedures.
  • There was alcohol in your mouth from a different source like mouthwash.
  • You had rising blood alcohol when the drunk-driving test was being conducted (meaning your BAC was lower when driving).
  • You had a health condition like acid reflux or GERD.
  • You were on a low/carbohydrate/high protein diet that might have ‘cheated’ the DUI test.

These defenses may also apply to other DUI charges.

Driving Under the Influence of Drugs {VC 23152(f)(g)}

California State has two laws that criminalize driving while intoxicated with drugs. These are VC 23152(f) DUI of drugs and VC 23152(g) operating an auto under the combined influence of alcohol and drugs.

For VC 23152(f)(g) purposes, a drug means a substance that’s not alcohol, which could affect a person’s brain, muscles, or nervous system that it would noticeably impair their ability to operate a vehicle as an ordinarily careful and sober person would do under the same circumstances. Therefore, a drug includes:

  • Legal drugs like marijuana
  • Illegal ones like heroin, cocaine, and methamphetamine
  • Prescription medications, even if they do make the driver ‘high.’
  • Over-the-counter drugs like cold medicines and antihistamines

California doesn’t have a specific legal limit for drugs like it is with DUI of alcohol. This is because experts can’t agree on what drug concentration in the blood makes a person too impaired to operate a vehicle. Thus, the California statute merely states that it’s unlawful for a person to drive:

  • While intoxicated with drugs,
  • While under the combined intoxication of alcohol and drugs, or
  • While addicted to any drugs, except if they’re receiving treatment for the addiction under an approved program

DUI Law for Lyft, Uber, Limo, & Taxi Drivers {VC 23152(e)}

VC 23152(e) was effected on 1st July 2018. It makes it an offense for Taxi, Limo, Lyft, and Uber drivers to drive with a 0.04% or higher BAC. A violation of this law is a misdemeanor for a first, second, and third offense. A fourth offense DUI under this statute is a felony. A driver can also be subject to a penalty enhancement if aggravating factors exist. The aggravating circumstances include:

  • Causing a crash
  • Excessive speed
  • Refusing to perform a DUI blood test
  • The passenger was below fourteen years old.

Note that you aren’t allowed to drive for Lyft or Uber in California if your past DUI conviction was within the past ten years. A DUI stays on your driving history for ten years, and after it’s removed, it won’t appear on a background check. If you have a felony conviction for DUI, irrespective of how long ago it was, neither a Lyft nor Uber company will permit you to drive for them.

Find a DUI Criminal Defense Attorney Near Me

At the LA Criminal Defense Law Firm, we have achieved successful results for our DUI clients, thanks to our in-depth understanding of the DUI laws. And since we’re also strong advocates for DUI offenders’ rights, we always strive to ensure our clients are subjected to a fair hearing. To schedule a cost-free consultation in Los Angeles and the surrounding areas, contact us at 310-935-1675 today.