California Vehicle Code Section 23152(b) punishes a defendant for driving while under the influence of alcohol with a blood alcohol content of 0.08% or higher.

There is a rebuttable presumption that if the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving, that the person is guilty of DUI, whether or not the person was actually driving under the influence. However, the presumption is not conclusive and can be challenged on various grounds that are discussed under defenses to this offense below.

To prove that you are guilty of this offense, a prosecutor has to prove the following facts or elements:

You drove a vehicle (The Vehicle Code defines “vehicle” as a device by which any person or property may be propelled, moved, or drawn upon a highway that is not powered exclusively by human power.)

California Vehicle Code Section 670 – Vehicle: “A ‘vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”


To prove that you violated this offense, a prosecutor has to provide evidence that shows that you were actually “driving” with a BAC of 0.08% or higher. This requires proving that you moved the car any distance. If the defendant was merely sleeping in the car while the car was parked, or if he/she was at the wheel while a friend ran into a store, he/she did not violate this Vehicle Code section.

Your BAC was below 0.08% at the time of driving: As was discussed above, if your BAC level was not at least 0.08% or higher at the time you were driving, you are not guilty of this offense. It does not matter that your BAC level rose to a higher level by the time you arrived to the police station to be tested, as this commonly happens because your body may have still been absorbing the alcohol as you drove.

An experienced and skilled criminal defense attorney who specializes in DUIs will bring in an expert to investigate the facts and to determine whether or not under the circumstances, your BAC level could have been above 0.08% at the time you were driving.

How Can You Fight Charges Under California Vehicle Code Sections 23152(b)?

Inaccurate Blood Test Results: California’s Code of Regulations Title 17 governs the performance of blood and breath tests.

Title 17 requires that when a DUI blood test is conducted the following procedures have to be followed:

-The blood should be collected using sterile equipment

-The draw site must be sterilized using a non-alcoholic non-volatile cleaning agent

-The draw should be performed only by authorized personnel such as a specially trained technician

-There should be a sufficient amount of coagulant and preservative in the vile

-The blood should be mixed with the coagulant and preservative

-The blood should be stored properly in a clean dry container that is closed with an inert stopper

If any of these procedures are violated, the test results should be challenged as inaccurate, as the resulting BAC may be too high.

Incorrect Administration of the Chemical Test: The chemical test machine has to be calibrated correctly and maintained. If you can prove that the officers did not comply with these requirements, that the machine was faulty, or that the technician was not competent, you may be able to get the test results thrown out.

The result was inaccurate due to consumption of food/medication: Most machines that test for alcohol in your breath will register chemical compounds in human breath as alcohol, including some types of food and drugs or medications that are legal for you to take while driving. Eating food which causes acid reflux or a condition called Gerd, as well as taking such drugs within certain periods prior to the test may result in a false reading.

What Are The Penalties for Driving With a Blood Alcohol Content of 0.08%?

An offender of California’s DUI law may be facing the following punishments/penalties depending on whether he/she is a first time offender; whether the offense is charged as a misdemeanor or felony; the facts of the case; and the offender’s criminal history:

Misdemeanor charge: Offenses under this code section are typically charged as misdemeanors for the first, second, and third time DUI offenders.

If that is the case, a defendant faces:

-A maximum jail sentence of 6 months in county jail

-A fine between $390 and $1,000

-A 6-month to 3-year driver’s license suspension

-Informal probation

-Installation of a California ignition interlock device “IID”

-Successful completion of a DUI program, the length of which varies depending on factors like your BAC at the time of arrest

Felony charge: If you have committed your fourth DUI offense within a 10-year period, or have committed a DUI causing injury pursuant to Vehicle Code Section 23153(b) — Driving with 0.08 Percent Blood Alcohol Causing Injury, you may face the following penalties:

-A maximum prison sentence of 3 years in state prison

-A 4-year driver’s license revocation

-Formal probation

-Designation by the DMV as a habitual traffic offender.

Fiumara & Milligan Law, PC Is Here To Defend You

The state of California has implemented some of our nation’s harshest DUI laws. It is important to find a knowledgeable Santa Rosa attorney who can assist you in reducing the charges or fighting for lesser penalties.

At Fiumara & Milligan Law, PC our experienced DUI attorneys can help you with questions you might have about the entire DUI process and penalties for an offender.

 If you need to speak to a DUI attorney about your DUI case, please call our office at (707) 571-8600 in our centrally located Santa Rosa office in Sonoma County or call our office in San Rafael in Marin County at (415) 492-4507 to schedule a free and confidential case evaluation. Find out what over 40 years of combined DUI Defense law experience can do for you!