California Vehicle Code 23152(a) V.C.

A DUI charge involves the allegation of "driving under the influence" of alcohol or drugs (legal or illegal).

What is a DUI Charge?

California Vehicle Code 23152(a) V.C. prohibits driving under the influence of alcohol or drugs. The police can arrest you for driving under the influence of drugs, even lawfully prescribed ones, if they believe the drug has impaired your ability to safely operate a motor vehicle.

In California, you can be charged with a DUI if you have a blood alcohol concentration (“BAC”) of .08% or more (see California Vehicle Code 23152(b) V.C.). (If you are a juvenile, you can even have a lower BAC and still be charged – see California Vehicle Code 23136 V.C. & California Vehicle Code 23140 V.C.)

Typically, you will be charged after the police pull you over and give you a field sobriety test (“FST”), which you fail, or after you fail a breathalyzer test at that time.

Please note that even if you refuse to participate in the FST or refuse the breathalyzer test at the scene (both of which are voluntary), you can still be arrested if the police claim they have probable cause that you were intoxicated. (See California Vehicle Code 23612 V.C.) At that point, you will be given the option of either a breath test or a blood test. Under the implied consent law, the breath test at the police station or a blood test are mandatory if the police have probable cause that you were driving impaired.

What Does the Prosecutor Need to Prove for a DUI Charge?

To prove that you are guilty of a DUI charge under California Penal Code 23152(a) P.C., the prosecutor must prove each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 2110):

  • You drove a vehicle; and
  • When you drove, you were under the influence of an alcoholic beverage and/or drug(s).

To prove that you are guilty of a DUI charge under California Penal Code 23152(b) P.C., the prosecutor must prove each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 2111):

  • You drove a vehicle; and
  • When you drove, your blood alcohol level was 0.08 percent or more by weight.

What Happens If I am Convicted of a DUI Charge?

Penalties vary widely for a DUI, depending on whether you have any prior DUI convictions within the previous ten years (known as the “lookback” period), your BAC level, or whether you injured or killed someone (see California Vehicle Code 23153 V.C.). These factors will determine whether you are charged with a felony or a misdemeanor.

When you get charged with a DUI, you will also have to appear and defend yourself at a DMV administrative hearing to prevent the loss of your driver’s license. Ms. Saffari has extensive experience successfully representing clients at these hearings. If you refuse a breathalyzer test at the station, you will automatically lose your driver’s license for one year.

If you kill someone while driving under the influence, you could face manslaughter or even second-degree murder charges, which can result in a minimum 15-year prison sentence.

In general, if you are convicted of a DUI, you face the following punishment under California Vehicle Code 23536 V.C., California Vehicle Code 23540 V.C., California Vehicle Code 23646 V.C. & California Vehicle Code 23566 V.C. (excluding any sentencing enhancements):

  • Maximum six months in county jail (if you are convicted of a first-time DUI); or
  • Maximum one year in county jail (if you are convicted of a second-time DUI, third-time DUI, or misdemeanor DUI with injury); or
  • Sixteen months, two years, or three years in prison (felony DUI without injury); or
  • From 16 months to 16 years in prison (felony DUI with injury);
  • A fine of $390-$1,000;
  • Loss of license for 6-10 months (may be restricted if not suspended), two years (2nd DUI), three years (3rd DUI or misdemeanor DUI with injury), four years (felony DUI without injury), or five years (felony DUI with injury);
  • DUI school (length depends on how many prior DUI convictions);
  • Probation of three or five years (felony or misdemeanor);
  • Possible counseling;
  • Victim restitution (if applicable);
  • Possible installation of Ignition Interlock Device (“IID”) on your car;
  • Possible community service (felony or misdemeanor); and
  • Possible loss of ability to obtain or maintain a professional license; loss of employment, educational, or military enlistment opportunities, or adverse immigration consequences (if applicable).

What are My Possible Defenses to a DUI Charge?

The following are the possible defenses to a DUI charge:

  • Lack of intoxication. You weren’t actually intoxicated (i.e., you merely exhibited poor or reckless driving while sober); you failed the FST because of physical problems, allergies, illness or fatigue (and not because of intoxication); the BAC was the result of the ingestion of non-intoxicating substances; or, if you’re an adult, you had a BAC of less than .08%.
  • Involuntary intoxication. You were intoxicated through no fault of your own.
  • You were not driving. You weren’t the actual driver.
  • Faulty Breathalyzer or blood test. The Breathalyzer triggered a false reading and/or the blood test was flawed. The breath test is typically administered during what is called the Preliminary Alcohol Screening (PAS). Surprisingly, a number of foods, drinks, other legal substances, acid reflux, and certain medical conditions can trigger a false positive during the PAS. Even vomiting, belching, and regurgitating can trigger a false positive.
  • Faulty field sobriety test. A police officer who pulls you over is not lawfully allowed to give you an FST unless he or she observes signs of obvious intoxication, such as slurred speech, bloodshot eyes, smell of alcohol on your breath, etc. Even then, however, you may have a viable defense if you were not intoxicated but merely exhausted, had the flu, suffering from allergies, etc. The same defense may apply if you fail an FST. Or you may have failed an FST because of the footwear you were wearing, because you had done heavy squats at the gym earlier, etc. Finally, you may have a viable defense if the police officer failed to properly administer the FST, or if he or she was not properly trained on how to do so.
  • Lack of reasonable suspicion or probable cause for the initial stop by police. A police officer cannot lawfully pull you over for a DUI unless he or she has at least a reasonable suspicion that you are driving under the influence. These means that he or she must have observed you for a sufficient period of time exhibiting symptoms of intoxication, such as weaving between lines, driving too slow or too fast, etc. This defense also includes prohibited racial profiling by the police.
  • Rising blood alcohol content level. In many DUI cases Ninaz Saffari has defended, her client was actually legally sober at the time of the stop, but his or her BAC level rose thereafter to the point where he or she was legally intoxicated when tested at the police station where the first or second Breathalyzer test was administered. This often occurs if you had consumed one or more alcoholic beverages shortly before the stop, and your body had not yet absorbed the alcohol.
  • Unlawful DUI checkpoint.
  • False accusations. The alleged victim or supposed eyewitness may have ulterior motives for lying to the police. Some of the most common motives include child custody disputes and romantic strife with current or former lovers.
  • Misidentification by the accuser or witness. For example, your act was misunderstood or misinterpreted, or you were not the actual person who was driving. Eyewitness identification can be affected by many different factors, including bad lighting, witness stress, cross-racial identification, suggestions by the police, etc.
  • Constitutional defenses. These include police misconduct (coerced confession, planted evidence, falsified police report, etc.), Miranda violations (suppressing any statements you made to the police if your Miranda rights were violated), and suppression of evidence that was seized without reasonable suspicion, probable cause, or a valid warrant (in violation of the Fourth Amendment).
  • Insufficient evidence. The prosecutor failed to provide sufficient evidence to prove you are guilty beyond a reasonable doubt of one or more charges.
  • The arresting police officer is not credible. In other words, for any host of reasons, the jury simple does not believe what the accuser and/or witnesses are claiming about your criminal culpability.

How Has Ninaz Saffari Attacked the Prosecution’s Evidence on DUI Cases in the Past?

There are numerous ways to attack the prosecution’s evidence. For example, Ms. Saffari has tried many DUI cases before a jury where she was successfully able to:

  • attack the credibility of the arresting officer;
  • attack the results of the breathalyzer test by proving that the breathalyzer machine had not been properly calibrated and/or maintained as required by law;
  • attack the actual analysis of the breathalyzer and blood-test results;
  • impeach the technician conducting the various tests, including by showing his or her lack of experience, training, knowledge or competency;
  • prove that her client’s BAC was the result of “rising blood alcohol”, meaning that he or she was not actually as intoxicated at the time he or she was driving as the breathalyzer machine or blood test later indicated;
  • attack the chain of custody of the BAC or blood evidence used against her client; and
  • the FST was inaccurately or improperly conducted.

Ms. Saffari has filed numerous highly technical motions to defend her DUI clients, including “blood-split” motions (to attach the blood-test results), as well as motions to suppress, which can result in the results being excluded from evidence.

What Kind of DUI Charges Has Ninaz Saffari Defended?

Since 2005, Ninaz Saffari has successfully represented scores of clients against DUI charges, with allegations ranging from DUI with traffic collisions, felony DUI involving injury to another, DUI resulting in death (second-degree murder), DUI involving manslaughter charge, BAC more than 2.5 times above the legal limit, DUI involving illegal drugs (intoxication and possession), DUI with refusal of breathalyzer test, DUI with rising BAC level, DUI involving potential loss of a professional license, DUI involving military enlistment consequences, etc. See her Case Results.


If you or a loved one are currently being investigated or prosecuted for this crime, it is critical that you immediately hire a highly skilled, aggressive and experienced Los Angeles County DUI criminal defense attorney like Ninaz Saffari. Contact the Saffari Law Firm, P.C. now for a free telephone consultation. If Ms. Saffari believes she can help you, she will immediately schedule a free in-person meeting or, if you are in custody, she will visit you in jail (again, for free and with no obligation to hire her).


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