DUI Basics FAQ

Vehicle Code Section 23152(a) and 23152(b) are two distinct DUI offenses in California, though they often occur together. VC 23152(a) prohibits driving under the influence of any alcoholic beverage, meaning the prosecution must prove that alcohol affected your ability to drive with the caution of a sober person using ordinary care. This is a subjective standard that requires evidence of actual impairment through field sobriety tests, driving pattern, physical symptoms, and officer observations.

VC 23152(b), on the other hand, is a per se violation that makes it illegal to drive with a blood alcohol concentration (BAC) of 0.08% or higher, regardless of whether your driving was actually impaired. The prosecution only needs to prove you were driving and had a BAC at or above the legal limit. This is an objective standard based solely on chemical test results. Most DUI arrests result in charges under both subsections, giving prosecutors two potential paths to conviction. You can be found guilty of one, both, or neither charge, but you can only be punished once for the same incident.

California has three different BAC limits depending on the driver category. For regular drivers age 21 and over, the legal limit is 0.08% BAC under VC 23152(b). This applies to most drivers operating standard passenger vehicles for personal use. Commercial drivers are held to a stricter standard of 0.04% BAC under VC 23152(d), reflecting the greater responsibility of operating large vehicles and the potential for catastrophic damage in accidents involving commercial trucks or buses.

Drivers under 21 face zero tolerance under VC 23136, which prohibits any BAC of 0.01% or higher. This recognizes that it's illegal for anyone under 21 to consume alcohol in California. Additionally, drivers on DUI probation from a prior conviction are subject to a 0.01% BAC limit under VC 23154. These varying standards reflect California's commitment to highway safety while recognizing different risk profiles among driver categories. Violating any of these limits can result in criminal charges, license suspension, and other serious penalties tailored to the specific violation.

A first-time DUI conviction under VC 23152 carries significant penalties that can dramatically impact your life. The potential jail sentence ranges from 48 hours to 6 months in county jail, though many first-time offenders receive probation instead of actual jail time. Fines range from $390 to $1,000, but with penalty assessments and fees, the total cost typically reaches $3,000 to $5,000 or more. You'll be placed on informal (summary) probation for 3 to 5 years, during which you must comply with specific conditions including not driving with any measurable alcohol and not refusing chemical tests.

Additional penalties include mandatory completion of a 3-month (30-hour) or 9-month DUI education program under VC 23538, depending on your BAC level. The DMV will suspend your driver's license for 6 months under VC 13352, though you may be eligible for a restricted license after 30 days if you install an ignition interlock device (IID). Courts increasingly order IID installation for 6 months or throughout the suspension period under VC 23575. These penalties can be enhanced for aggravating factors like high BAC (0.15% or above), refusal to submit to chemical testing, causing an accident, having a minor in the vehicle, or excessive speeding.

California defines being "under the influence" as having your physical or mental abilities so impaired that you can no longer drive with the caution of a sober person using ordinary care under similar circumstances. This is established through California jury instruction CALCRIM 2110. It's important to note that you don't need to be falling-down drunk or severely intoxicated to be considered under the influence. Any appreciable impairment of your driving ability due to alcohol consumption can support a conviction under VC 23152(a).

The prosecution can prove impairment through various types of evidence including performance on field sobriety tests (walk-and-turn, one-leg stand, horizontal gaze nystagmus), driving pattern (weaving, speeding, delayed reaction to signals), physical symptoms (slurred speech, bloodshot eyes, unsteady gait, flushed face), odor of alcohol on breath or person, and officer observations during the traffic stop and field sobriety tests. Unlike the 0.08% BAC standard under VC 23152(b), being "under the influence" under VC 23152(a) is inherently subjective and depends on the totality of circumstances. This means you can be convicted even with a BAC below 0.08% if the evidence shows alcohol impaired your driving ability.

Yes, you can absolutely be convicted of DUI in California even with a BAC below 0.08% under Vehicle Code Section 23152(a). This subsection prohibits driving while under the influence of alcohol, regardless of your specific BAC level. While 0.08% is the per se legal limit under VC 23152(b), VC 23152(a) focuses on actual impairment rather than a specific numeric threshold. The prosecution must prove that alcohol impaired your ability to drive with the caution characteristic of a sober person exercising ordinary care.

This can be demonstrated through field sobriety test performance, erratic driving behavior, physical symptoms of intoxication, and officer testimony about your condition. Some people show significant impairment at BAC levels of 0.05% or even lower, depending on factors like body weight, tolerance, fatigue, medications, and individual physiology. This is particularly relevant for cases involving drivers under 21 (VC 23136), commercial drivers (VC 23152(d)), and drivers on DUI probation (VC 23154), who face lower BAC thresholds. Even if your BAC test comes back below 0.08%, prosecutors can still pursue charges under VC 23152(a) if they have sufficient evidence of impairment. This dual charging structure gives prosecutors flexibility in obtaining DUI convictions even when BAC evidence is marginal or unavailable.

California uses a 10-year lookback period for DUI convictions under Vehicle Code Section 23152. This means any DUI conviction within the previous 10 years will count as a prior offense for sentencing enhancement purposes. The lookback period is calculated from the date of the current offense to the dates of any prior DUI arrests, not convictions. So if you were arrested for DUI on January 1, 2020, and arrested again on December 31, 2029, your prior would still count even if the 2020 case wasn't convicted until 2021.

This 10-year window applies to convictions for VC 23152 (DUI), VC 23153 (DUI causing injury), and wet reckless under VC 23103.5. It means a second DUI within 10 years carries enhanced penalties including 96 hours to 1 year in jail, $390-$1,000 in fines plus assessments, 18-30 month DUI program, and 2-year license suspension. A third DUI within 10 years brings 120 days to 1 year in jail, 30-month DUI program, and 3-year license suspension. A fourth DUI within 10 years is automatically charged as a felony under VC 23550 with 16 months to 3 years in state prison. After the 10-year period expires, prior DUI convictions no longer count for sentencing purposes, though they remain on your criminal record permanently.

A DUI becomes a felony in California under several circumstances outlined in state law. If the DUI causes injury to another person, it's charged as felony DUI causing injury under Vehicle Code Section 23153, which carries 16 months to 4 years in state prison, $390-$5,000 in fines, habitual traffic offender status, and up to 5 years of license revocation. The injury can be to another driver, passenger, pedestrian, or even your own passenger. A fourth DUI within 10 years is automatically charged as a felony under VC 23550, carrying 16 months to 3 years in state prison plus additional penalties.

Additionally, if you have a prior felony DUI conviction, any subsequent DUI will be charged as a felony under VC 23550.5, creating a permanent enhancement to your criminal exposure. Felony DUI also applies when a DUI results in death, charged as gross vehicular manslaughter while intoxicated under Penal Code Section 191.5(a), carrying 4 to 10 years in prison, or vehicular manslaughter under PC 191.5(b) with up to 6 years. Unlike misdemeanor DUI which is punishable in county jail, felony DUI convictions result in state prison sentences, lifetime criminal felony records, significant challenges in employment and housing, and potential immigration consequences for non-citizens. Prosecutors have discretion to charge some felony DUIs as misdemeanors (wobblers), but fourth DUIs and those causing serious injury or death are typically straight felonies.

Wet reckless and dry reckless are both reduced charges from DUI under Vehicle Code Section 23103 for reckless driving. A wet reckless, formally charged under VC 23103.5, is reckless driving involving alcohol. The term "wet" indicates alcohol was involved, and this notation is specifically added to the charge. The wet reckless counts as a prior DUI conviction if you're arrested for DUI again within 10 years, meaning it will be treated like a first DUI for purposes of calculating your second DUI penalties. However, wet reckless carries lighter penalties than a standard DUI: 5 to 90 days in jail (often none), $145-$1,000 in fines, 2-year probation, and possible DUI education program (typically shorter than standard DUI programs).

A dry reckless, charged under VC 23103 without the alcohol notation, is simply reckless driving with no mention of alcohol or drugs. This is a significant advantage because it does not count as a DUI prior if you're arrested for DUI in the future. Dry reckless also doesn't require DUI school, doesn't trigger mandatory license suspension, and carries less stigma on your record. Prosecutors typically only offer dry reckless when the DUI case has significant weaknesses, such as BAC near 0.08%, questionable stop, or problems with chemical test procedures. Both wet and dry reckless are preferable to DUI convictions, but dry reckless is the most favorable outcome short of complete dismissal. These plea bargains are negotiated between defense attorneys and prosecutors based on the strengths and weaknesses of the specific case.

While you can technically refuse a breathalyzer or other chemical test in California, there are serious consequences under the implied consent law in Vehicle Code Section 23612. By driving on California roads, you've given implied consent to chemical testing if lawfully arrested for DUI. If you refuse a chemical test after being lawfully arrested for DUI, you face an automatic 1-year license suspension for a first refusal, 2-year revocation for a second refusal within 10 years, and 3-year revocation for three or more refusals. These suspensions are in addition to any criminal penalties and apply even if you're ultimately found not guilty of DUI.

The refusal can also be used against you in criminal court as evidence of consciousness of guilt, and prosecutors can add a sentencing enhancement requiring mandatory jail time under VC 23577 (48 hours for first offense with refusal). It's critical to distinguish between pre-arrest preliminary alcohol screening (PAS) tests and post-arrest chemical tests. You generally have the right to refuse the PAS breathalyzer test (unless you're under 21 or on DUI probation), but refusing a chemical test after arrest triggers the implied consent penalties. Post-arrest, you must choose between breath or blood testing under VC 23612(a), and the officer should explain the consequences of refusal. If you're incapable of completing the chosen test, you must submit to the alternative. Exceptions exist for people who are unconscious or otherwise unable to refuse, in which case blood may be drawn under VC 23612(a)(5). Given these serious consequences, refusal is rarely advisable and often makes your situation worse rather than better.

California imposes enhanced penalties for drivers with a BAC of 0.15% or higher, often called an excessive BAC enhancement. While not specifically codified in Vehicle Code Section 23152, courts routinely impose stricter conditions for high BAC cases based on judicial discretion and local court policies. For first-time offenders with BAC at or above 0.15%, courts typically order a 9-month DUI education program instead of the standard 3-month program required under VC 23538. This means 60 hours of classes over nine months instead of 30 hours over three months, along with increased costs and time commitment.

Additional enhanced penalties for high BAC may include mandatory ignition interlock device (IID) installation for the entire suspension period or longer under VC 23575, longer probation terms (5 years instead of 3), higher fines and penalty assessments, actual jail time rather than suspended sentences (though not mandatory), more frequent probation check-ins and stricter conditions, and potentially Mothers Against Drunk Driving (MADD) victim impact panels. Some counties treat BAC of 0.20% or higher as extreme DUI requiring even harsher penalties. These enhanced conditions reflect the increased danger posed by drivers with very high BAC levels, as crash risk and injury severity increase exponentially with BAC levels. Judges view high BAC as evidence of extremely poor judgment and heightened risk to public safety, warranting more stringent sanctions to protect the community and deter future dangerous conduct.