When a person is arrested for a DUI in California, they are generally charged with two offenses: California Vehicle Code Section 23152(a) and California Vehicle Code Section 23152(b). Although both are typically charged (when alcohol is used), they are both separate offenses.
California Vehicle Code Section 23152(a) states: “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.” A person violated this code section when they are impaired by drugs or alcohol. The impairment is different for each person and can occur at differing BAC levels. For example, a person who is an inexperienced drinker may only have a blood alcohol level of .06%, but could potentially still be in violation of California Vehicle Code Section 23152(a) if they are impaired.
This same applies for a person who is under the influence of drugs, prescription or otherwise. A person may not be used to a particular drug in their system, and while another person may not be impaired with that drug in their system, the inexperienced user may still be impaired.
California Vehicle Code Section 23152(b) states: “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.” This section makes no mention of drug use, and only concentrates on a person’s blood alcohol content. While a person may feel unimpaired at a .11 percent blood alcohol level, this code section draws a hard line in the sand, making it a violation to have a blood alcohol level of .08% or more while driving, regardless of tolerance.
While tolerance is not a defense to a violation of California Vehicle Code Section 23152(b), it does not make it irrelevant in a DUI case. Depending on the blood alcohol level, as well as the conduct at the stop, we can potentially use that information to get a case reduced to a lesser charge, or even dismissed.
Violating Vehicle Code Section 23152(A) or 23152(b), whether it is because of alcohol or drugs, is a misdemeanor in California unless; It is your fourth or subsequent offense, you have a prior felony conviction for driving under the influence, or your driving causes an injury to a third party.
If charged as first time misdemeanor DUI the penalties can include; three to five years of summary (informal) probation, up to six months in county jail, fines between $390-$1000 plus penalties and assessments, a three, six, or nine month alcohol education class, a six to ten month license suspension, which may be converted to a restricted license.
If you are charged with a second or third misdemeanor driving under the influence allegation, the penalties can be greatly increased. Most counties require a minimum mandatory jail time for a second offense of 96 hours, and 120 days for a third offense. Additionally, the court will order an 18 month alcohol education class.
If charged as a felony the penalties can be; sixteen months, 2 years, or 3 years in California State prison, fines between $390-$1000 plus penalties and assessments, a four year California license revocation, a designation as an “Habitual Traffic Offender” with the California DMV, which increased greatly your penalties if convicted of driving with a suspended license.
The above penalties only apply to felony DUI’s without injury. If an injury occurs, the total prison time may go up dramatically, as well as the possibility of a strike being assessed against your record.