What Are DUI Charges?
Driving under the influence (DUI) is one of the most commonly charged criminal offenses in California. Under Vehicle Code 23152, it is illegal to operate a motor vehicle while impaired by alcohol, drugs, or a combination of both. California law provides two separate theories under which the prosecution can bring a DUI charge — impairment-based and per se BAC — and prosecutors frequently charge both in the same case.
If you have been arrested for DUI in San Jose, Oakland, Fremont, Palo Alto, or anywhere throughout the Bay Area, the defense attorneys at RV Litigation Group PC can help. A DUI arrest does not have to result in a conviction. We challenge every element of the prosecution's case, from the legality of the traffic stop to the accuracy of the chemical test results.
What the Law Says
Vehicle Code 23152(a) — Driving Under the Influence
"It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle." — California Vehicle Code Section 23152(a)
This section does not require a specific blood alcohol concentration. The prosecution must prove that alcohol (or drugs) impaired your ability to drive with the caution of a sober person using ordinary care. Evidence used to support this charge includes the officer's observations — such as the odor of alcohol, slurred speech, bloodshot eyes, and unsteady gait — as well as performance on field sobriety tests. Courts in Santa Clara County and Alameda County routinely see these cases, and the outcome often depends on how effectively the defense can challenge subjective officer testimony.
Vehicle Code 23152(b) — BAC of 0.08% or Greater
"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." — California Vehicle Code Section 23152(b)
This is the "per se" DUI law. If your blood alcohol concentration was at or above 0.08% at the time of driving, the prosecution does not need to prove that your driving was actually impaired. The BAC number alone is sufficient. However, this also means the accuracy and timing of the chemical test become central issues. Breathalyzers can produce inaccurate readings, blood samples can be improperly handled, and there may have been a significant delay between the time of driving and the time of testing — all of which create opportunities for the defense.
Real-World Examples
These scenarios illustrate how DUI charges commonly arise in the Bay Area:
A driver in San Jose passes through a DUI checkpoint on a Friday night. The officer detects the odor of alcohol and asks the driver to perform field sobriety tests. The driver stumbles during the walk-and-turn test, and a subsequent breath test registers 0.09%. The driver is arrested for DUI under VC 23152(a) and (b). However, the breath test was administered 45 minutes after the stop, and the driver had consumed a drink shortly before driving — raising a potential rising BAC defense.
A woman in Palo Alto is pulled over after weaving between lanes. She has not consumed any alcohol, but she recently took a prescribed pain medication. Officers observe drowsy behavior and dilated pupils, and she is arrested for DUI of drugs under VC 23152(f). A defense attorney may challenge whether the medication actually impaired her driving or whether a medical condition caused the observed symptoms.
A man in Oakland with two prior DUI convictions within the past ten years is involved in a minor fender-bender. His BAC measures 0.15%. Because this is his third DUI offense, the Alameda County District Attorney files felony DUI charges, which carry a minimum of 120 days in county jail and a three-year license revocation.
A driver in Fremont runs a red light and collides with another vehicle, injuring the other driver. The responding officer administers a breath test showing a BAC of 0.11%. The driver is charged with DUI causing injury under VC 23153, a wobbler offense that can be filed as a felony carrying up to four years in state prison and a requirement to pay restitution to the injured party.
Penalties
DUI penalties in California escalate significantly with each subsequent offense. The court also considers aggravating factors such as excessive speed, a very high BAC, causing an accident, or having a minor in the vehicle.
| Charge | Classification | Jail / Prison | Fine |
|---|---|---|---|
| 1st DUI (VC 23152) | Misdemeanor | Up to 6 months county jail | $390–$1,000 + penalties |
| 2nd DUI (within 10 years) | Misdemeanor | 96 hours to 1 year county jail | $390–$1,000 + penalties |
| 3rd DUI (within 10 years) | Misdemeanor | 120 days to 1 year county jail | $390–$1,000 + penalties |
| Felony DUI (4th+ offense) | Felony | 16 months, 2, or 3 years state prison | Up to $1,000 + penalties |
| DUI with Injury (VC 23153) | Wobbler | Up to 4 years state prison (felony) | Up to $5,000 + restitution |
Additional consequences: Beyond fines and incarceration, a DUI conviction results in a driver's license suspension (4 months to 4 years depending on the offense), mandatory enrollment in a DUI education program (3 to 30 months), installation of an ignition interlock device, and a significant increase in insurance premiums. A DUI on your record can also affect employment, professional licensing, and immigration status.
Legal Defenses
DUI cases are highly technical, and there are numerous points where the prosecution's case can be challenged. Here are the defenses our attorneys most frequently use for clients in San Jose and throughout California:
1. Challenging the Traffic Stop
A DUI investigation begins with the traffic stop. Under the Fourth Amendment, an officer must have reasonable suspicion that a traffic violation or crime has occurred before pulling you over. If the stop was based on a hunch, a minor equipment issue that did not actually violate the law, or was conducted at an improperly operated checkpoint, the defense can file a motion to suppress all evidence obtained after the stop. If the motion is granted, the case often cannot proceed.
2. Breathalyzer Accuracy
Breath testing devices must be properly calibrated, maintained, and operated according to Title 17 of the California Code of Regulations. If the device was not calibrated within the required time frame, the operator was not properly trained, or there were environmental factors that could affect the reading — such as radio frequency interference or the presence of chemical fumes — the BAC result may be unreliable. Our attorneys obtain maintenance and calibration records and challenge flawed results.
3. Rising BAC Defense
Alcohol takes time to absorb into the bloodstream. If you consumed alcohol shortly before driving, your BAC may have been below 0.08% while you were actually behind the wheel but rose above the legal limit by the time the chemical test was administered — sometimes 30 to 60 minutes later. We retain toxicology experts who can perform retrograde extrapolation calculations to demonstrate that your BAC at the time of driving was likely below the legal limit.
4. Field Sobriety Test Challenges
Standardized field sobriety tests — the horizontal gaze nystagmus, walk-and-turn, and one-leg stand — are designed to detect impairment, but they are far from foolproof. Medical conditions, physical disabilities, fatigue, nervousness, uneven road surfaces, poor lighting, and even the type of footwear can all cause a sober person to perform poorly. We challenge the conditions under which the tests were administered and the officer's interpretation of the results.
5. Mouth Alcohol and Medical Conditions
Breathalyzers measure alcohol in the breath, but they can be affected by residual mouth alcohol from recent belching, acid reflux (GERD), dental work, or the use of mouthwash or breath spray. Certain medical conditions, including diabetes and hypoglycemia, can produce acetone on the breath that the device may read as alcohol. Officers are required to observe the driver for at least 15 minutes before administering the breath test to ensure nothing enters the mouth — a protocol that is frequently not followed properly.
6. Improper Blood Draw
If you chose or were required to take a blood test, the sample must be drawn by qualified personnel, stored in a vial containing the proper preservative and anticoagulant, and maintained in a chain of custody that prevents contamination or fermentation. If any of these protocols were violated, the blood test result may be inadmissible. Our team also has the right to conduct an independent analysis of a split sample, which can reveal discrepancies with the prosecution's results.
Frequently Asked Questions
The legal blood alcohol concentration (BAC) limit in California is 0.08% for drivers 21 and older operating a standard passenger vehicle. For commercial drivers, the limit is 0.04%. For drivers under 21, California has a zero-tolerance policy with a limit of 0.01%. You can also be charged under VC 23152(a) for driving under the influence regardless of your BAC if your ability to drive is impaired.
Under California's implied consent law, refusing a chemical test after a lawful DUI arrest results in automatic penalties. For a first refusal, your license will be suspended for one year with no possibility of a restricted license. A second refusal within ten years results in a two-year suspension. Refusal can also be used as evidence against you at trial, and the prosecution may argue that you refused because you knew you were intoxicated.
A DUI arrest triggers two separate proceedings: a criminal case and a DMV administrative hearing. The DMV will automatically suspend your license unless you request an administrative hearing within 10 days of your arrest. If you do not request the hearing, or if you lose it, your license will be suspended for four months for a first offense. You may be eligible for a restricted license that allows driving to and from work or a DUI program.
Yes. California's DUI laws apply to all driving, not just driving on public roads. Under Vehicle Code 23152, you can be charged with DUI while operating a vehicle in a parking lot, a private driveway, or any other private property. The law prohibits driving under the influence anywhere in California, regardless of whether the location is publicly or privately owned.
A first-time DUI in California carries a potential sentence of up to six months in county jail. However, many first-time offenders receive probation instead of jail time, particularly if there were no aggravating factors such as an accident, a very high BAC, or a minor in the vehicle. The judge may impose conditions like community service, a DUI education program, and fines in lieu of incarceration.
