Difference between Vehicle Code 23152a and 23152b?
California Vehicle Code § 23152(a)prohibits driving under the influence of alcohol. The section allows you to get charged with DUI even if your BAC is under the legal limit of 0.08%. What matters is whether you are too intoxicated to operate a motor vehicle safely.
The language of the statute reads as follows:
23152. (a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.
(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.
Here are three key things to know:
- During a DUI traffic stop, police first look for “symptoms of intoxication” such as bloodshot eyes, slurred speech, and the smell of alcohol.
- Then police may ask you to take a preliminary alcohol screening (PAS) test and perform several field sobriety tests.
- For a first-time DUI conviction, you can usually avoid jail and continue driving with an ignition interlock device in your car.
If your breath- or blood test shows a .08%+ BAC, you will be charged with both 23152(a) VC (drunk driving) as well as the separate offense of 23152(b) VC (driving with excessive BAC or “DUI per se”):
| California DUI crime | Legal definition |
| 23152(a) VC – “Drunk driving” | Driving impaired by alcohol, and it does not matter if your BAC is below the legal limit. |
| 23152(b) VC – “DUI per se” | Driving with a BAC of .08% or higher, and it does not matter if you are sober and driving safely. |
However, even if the court finds you guilty of both 23152 VC sections (a) and (b), the two charges count as only a single DUI conviction.
In this article, our California DUI defense attorneys will answer the following key questions:
- 1. VC 23152(a) Explained
- 2. Defenses to DUI
- 3. Penalties
- 4. DUI Probation
- 5. License Suspension
- 6. Effect on Auto Insurance
- 7. Immigration Consequences
- 8. Expunging Your Record
- 9. Effect on Professional Licenses
- Additional Resources
23152(a) VC forbids drunk driving, even if your blood alcohol level while driving is less than 0.08%.
1. VC 23152(a) Explained
Vehicle Code 23152(a) VC prohibits driving under the influence of alcohol – in short, drunk driving. This law applies when your physical or mental abilities are impaired to the extent that you can no longer drive as safely as a cautious, sober person.1
Following every DUI arrest, you must submit to a breathalyzer or blood test to measure your BAC (blood alcohol content).2 However, you can be convicted of DUI of alcohol even if the alcohol test results are within the legal limit of less than 0.08%. All prosecutors have to prove are two things:
- You drove a motor vehicle, and
- You were under the influence of alcohol at the time you drove.3
Evidence of DUI that police look for
Prosecutors typically rely on circ*mstantial evidence to show that you were driving impaired by alcohol. The police will typically report that you:
- Were swerving or driving erratically,
- Smelled of alcohol,
- Had glassy, watery, and/or bloodshot eyes,
- Had slurred speech,
- Walked unsteadily with an uneven gate,
- Admitted to drinking, and/or
- Failed the PAS test and field sobriety tests.
One DUI arrest triggers two DUI charges
Note that prosecutors will usually charge you with two separate crimes:
- Driving under the influence of alcohol – VC 23152(a), which is a subjective standard because it is not based on BAC; and
- Driving with a BAC of 0.08% or greater – VC 23152(b), which is an objective “per se” standard because it depends solely on BAC.
Even if you violate both DUI laws, you will be punished for violating only one DUI law. In essence, the two DUI crimes melt into one.4
Note you may be charged with only VC 23152(a) if you refused chemical testing or if the blood results are still pending.
See our related article on zero tolerance for underage DUI defendants (VC 23136).
2. Defenses to DUI
Here at Shouse Law Group, we have represented thousands of people charged with driving under the influence of alcohol. In our experience, the following three DUI defenses to 23152(a) VC allegations are very effective with prosecutors, judges, and juries:
- You were driving competently.
- Field sobriety tests are poor tools to measure alcohol impairment.
- The police failed to follow proper procedures.
Your driving was not affected by alcohol
Sober people are responsible for the majority of traffic violations and road accidents. Perhaps your driving problems were caused by non-alcohol-related reasons such as:
- A momentary distraction,
- Fatigue,
- The sun in your eyes or a glare on the windshield,
- Mechanical problems with your vehicle,
- An emergency situation, or
- Medical reasons, such as a diabetic episode, a coughing fit, allergies, or a seizure.
If we can convince the prosecutors that they have insufficient evidence to prove impairment by alcohol specifically, they may agree to reduce the charge to a traffic infraction.
Note that being on drugs or in drug withdrawal is not an effective defense. Drugged driving (VC 23152(f)) or driving while addicted (VC 23152(c)) is a type of DUI and carries the same penalties as drunk driving.
Field sobriety tests are poor tools to measure alcohol impairment
There are many non-alcohol-related reasons why you would fail the walk-and-turn and one-leg standtests. Examples include:
- Anxiety and nerves,
- Fatigue,
- Medical conditions, such as a balance disorder,
- The terrain was not flat enough,
- You were wearing uncomfortable shoes, and/or
- The law enforcement officers did not give you the correct instructions.
Should the case go to trial, we will ask the police officer to testify about all of the ways that you correctly performed the field sobriety tests. This line of questions is designed to show the court that you did far more things right than wrong.
The police failed to follow proper procedures
Wrongdoing by law enforcement may be enough to get your DUI charge dismissed. We can ask the court to suppress any evidence the police may have obtained through their illegal actions.
Potential examples of police misconduct include:
- Not having enough “reasonable suspicion” to conduct your traffic stop,
- Not having enough probable cause to make your DUI arrest,5
- Administering the field sobriety tests incorrectly and giving you improper admonishments,
- Collecting and storing your breath and blood samples in violation of Title 17 of the California Code of Regulations,
- Coercing your confession, and/or
- Failing to read you your Miranda rights (if necessary).
Even if evidence suggests that you were driving while impaired by alcohol, one act of police misconduct could raise a reasonable doubt as to your guilt.6
Police misconduct is a possible defense to drunk driving charges, even if you have prior DUIs.
3. Penalties
A first, second, and third conviction of violating 23152(a) VC are usually misdemeanors. DUI punishments increase with each subsequent DUI. Also, the specific sentence may vary by county.
| Driving under the influence charge | California penalties* |
| First time DUI in 10 years | 3 to 5 years of summary probation (usually just 3 years); DUI school
Attendance at a Victim Impact Panel; $390 to $1,000 in fines, plus penalty assessments; 6-month driver’s license suspension, though you can usually drive immediately if you install an ignition interlock device (IID) in your vehicles for 6 months; 48 hours to 6 months in jail (judges typically order no jail if they grant probation); and Work release (depending on the county). |
| Second time DUI in 10 years | 3 to 5 years of summary probation; 18-month or 30-month DUI school course; $390 to $1,000 in fines, plus penalty assessments; 2-year driver’s license suspension, though you can usually drive immediately with an IID in your cars for 1 year; and 96 hours to 1 year in jail (the court may agree to grant house arrest or a work program instead of jail). |
| Third time DUI in 10 years | 3 to 5 years of summary probation; 30-month DUI school course; $390 to $1,000 in fines, plus penalty assessments; 3-year driver’s license suspension, though you can usually drive immediately with an IID in your cars for 2 years; and 120 days to 1 year in county jail (the minimum sentence is 30 days in jail if the judge grants probation and orders a 30-month DUI school course). |
| *Penalties for DUI offenses may be increased by certain aggravating circ*mstances, such as by speeding while DUI (VC 23582), having a child under 14 in the vehicle (VC 23572), or having a BAC of 0.15% or higher.7 | |
Depending on your case, prosecutors may be willing to plea bargain your DUI down to wet reckless (VC 23103.5) or dry reckless (VC 23103).
Note that a DUI conviction – or even a wet reckless conviction – can restrict you from traveling to Canada.8
Also see our articles on felony DUI, DUI causing bodily injury (VC 23153), exhibition of speed (VC 23109(c)), and fourth-time DUI in 10 years, which can be a felony carrying up to three years in prison.
4. DUI Probation
Probably. If you are convicted of a first offense of violating VC 23152(a), you will likely be eligible for informal probation instead of incarceration. However, some jail time is mandatory for second offenses, third offenses, or subsequent offenses.
Also called summary probation, informal probation typically lasts three to five years. You may remain on probation as long as you follow all court orders. These include:
- Completing all the terms of the criminal sentence, such as paying fines and attending DUI School;
- Driving win no measurable amount of alcohol in your blood (so nothing above a 0.00% blood alcohol concentration);
- Submitting to a chemical test after any future DUI arrests; and
- Not committing any other criminal offenses.
Additional DUI sentencing terms
Depending on your case, the judge may impose the following conditions as well:
- Attendance at Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings;
- Participation in the Mothers Against Drunk Driving (MADD) Victim Impact Program;
- Paying restitution to the car accident victims, if any;
- Completing a treatment program; and/or
- Performing community service.9
Violating the terms of probation can result in being remanded to jail. Learn more about California DUI probation violations.10
Each successive DUI case carries a longer suspension of driving privileges.
5. License Suspensions
Getting your license suspended is a standard California DUI penalty, though you can usually continue driving throughout this suspension as long as you install an IID in your vehicle.
The length of your license suspension period increases with each successive DUI:
| Misdemeanor DUI case in California | Length of license suspension |
| First-time offense in 10 years | If you lose the criminal case, the suspension lasts 6 months. If you lose the DMV case but win the criminal case, the suspension lasts 4 months. |
| Second-time offense in 10 years | 1 year if you install an IID. Otherwise, 2 years. |
| Third-time offense in 10 years | 2 years if you install an IID. Otherwise, 3 years.11 |
The only way you can avoid a driver’s license suspension following a California DUI arrest is to win both:
- Your criminal case, and
- Your DMV administrative hearing (which is a civil matter distinct from the criminal charge).
Note that you have only ten days to request a DMV hearing once the DMV gives you a notice of suspension/revocation. If you request the DMV hearing in time, you can continue driving pending the hearing; otherwise, the suspension will begin on the tenth day after the notice of suspension.
Also note that if you refuse to take a chemical test following your arrest, you will face a mandatory license suspension even if your DUI case gets dismissed.
Also see our articles about restricted licenses and DUIs and commercial driver licenses (VC 23152(d)).
6. Effect on Auto Insurance
Most insurance companies will increase premiums following a DUI. Though unless the incident caused an accident, you have no obligation to tell your insurer about the DUI.12 Your insurer might never find out about the DUI unless they run a background check.
Learn more about how DUIs affect insurance and SR-22 requirements.
7. Immigration Consequences
In our experience, non-citizens convicted of a misdemeanor offense of driving under the influence of alcohol do not get deported. This is because misdemeanor DUIs involving alcohol usually do not qualify as crimes involving moral turpitude.13
Learn more about how DUI affects immigration.
8. Expunging Your Record
Once you complete your misdemeanor probation, you may petition the court to get your 23152(a) VC conviction expunged.14 Employers are forbidden from using expunged DUI cases as a basis for not hiring or promoting workers.15
However, if you get charged with DUI again in the next 10 years, the expunged case will count as a prior. Therefore the new DUI charge will carry harsher penalties.16
9. Effect on Professional Licenses
If you hold a professional license and get arrested for DUI, you may be obligated to report it to your licensing board – even if the D.A. drops the charges. So check with your licensing board’s bylaws or consult with a labor law attorney about what steps are required of you.
Depending on your occupation, the licensing board may react to your DUI case by opening an investigation and either:
- Reprimanding you privately or publicly,
- Imposing administrative penalties such as fines,
- Requiring you to complete rehab,
- Restricting your license,
- Suspending your license, and/or
- Revoking your license permanently.
DUI cases tend to be taken more seriously by licensing boards if your occupation involves:
- Driving (such as chauffeurs or ambulance drivers);
- Counseling or care-taking (such as teachers or psychologists); or
- Prescribing or dispensing medications (such as doctors or pharmacy techs).
In any case, your licensing board should give you the opportunity to defend yourself at an administrative hearing and – if necessary – appeal any penalties.
Additional Resources
For more information, refer to the following:
- Alcoholics Anonymous – 12-step program for overcoming alcoholism.
- Drunk Driving Overview – NHTSA page on drunk driving statistics and prevention.
- Impaired Driving: Get the Facts – CDC fact sheet on impaired driving.
- Driving Under the Influence (DUI) – California DMV page on driver license suspension for DUIs.
- MADD – Non-profit organization devoted to stopping drunk driving.
Legal References
- California Jury Instructions, CALCRIM no. 2110. See also: People v. Schoonover (1970) 5 Cal.App.3d 101; People v. Enriquez (1996) 42 Cal.App.4th 661; and Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753.
- VC 23612(a)(2)(A); Padilla v. Meese (1986) 184 Cal.App.3d 1022; and People v. Wilson (1985) 176 Cal.App.3d Supp. 1.
- VC 23152(a); see also People v. Randolph (Cal. App. 5th Dist. 2018), 239 Cal. Rptr. 3d 395; see also Coffey v. Shiomoto (2015) 60 Cal. 4th 1198.
- Penal Code 654 PC. See also: People v. Wood (1989) 207 Cal.App.3d Supp. 11; People v. Campos (1982) 138 Cal.App.3d Supp. 1; People v. Randolph (1989) 213 Cal.App.3d Supp. 1; People v. Gallardo (1994) 22 Cal.App.4th 489; People v. Andersen (1994) 26 Cal.App.4th 1241; and People v. Grabham (Cal. App. 1st Dist., 2021), 68 Cal. App. 5th 549.
- Terry v. Ohio (1968) 392 U.S. 1. See also nhtsa.gov. See also: People v. Roder (1983) 33 Cal.3d 491; and
- See, for example, People v. Woodard (Cal. App. Dep’t Super. Ct., 1983) 143 Cal. App. 3d Supp. 1. See also: People v. Williams (2002) 28 Cal.4th 408; People v. Esayian (2003) 112 Cal.App.4th 1031; and People v. Lopez (Cal. App. 3d Dist., 2020), 260 Cal. Rptr. 3d 18.
- Vehicle Code 23536; VC 23540; VC 23646; and VC 23566. See also People v. Weathington (1991) 231 Cal.App.3d 69; People v. Calderon (1994) 9 Cal.4th 69; People v. Cline (1998) 60 Cal.App.4th 1327; People v. Hall (1998) 67 Cal.App.4th 128; and People v. Garcia (1989) 214 Cal.App.3d Supp. 1.
- Canadian Immigration and Refugee Protection Act (“IRPA”) 36; Canadian Criminal Code (“CC”) 253.
- PC 1203.
- VC 23600.
- VC 13352.
- Vehicle Code section 16000(a).
- See INA 237 (8 USC 1227).
- PC 1203.4.
- California Government Code 12952.
- PC 1203.4.
