California DUI Defense (Vehicle Code §23152) | Los Angeles

A California DUI under Vehicle Code §23152 is the criminal charge of driving under the influence of alcohol, drugs, or a combination. In Los Angeles County, a first-time DUI is filed as a misdemeanor in most cases and carries up to 6 months in county jail, fines of roughly $390 to $1,000 (plus penalty assessments that push total costs to several thousand dollars), a 6-month license suspension by the court, a separate DMV action, mandatory DUI school, and 3 to 5 years of summary probation. The Law Office of Zak Fisher represents people charged with DUI throughout Los Angeles County for a flat fee, with a free 20-minute consultation for anyone facing a pending charge.

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What Vehicle Code §23152 actually says

California Vehicle Code §23152 contains the two main subsections used in almost every DUI prosecution:

• VC §23152(a): It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. “Under the influence” means the driver’s mental or physical abilities were impaired to the point where they could no longer drive with the caution of a sober person, using ordinary care, under similar circumstances.
• VC §23152(b): It is unlawful for a person who has 0.08% or more, by weight, of alcohol in their blood to drive a vehicle. This is the “per se” subsection. The prosecution does not have to prove impairment, only the BAC at the time of driving.
• VC §23152(f): Drug DUI. Driving under the influence of any drug, including legally prescribed medication or cannabis.
• VC §23152(g): Combined influence of alcohol and any drug.
• VC §23152(d): Commercial drivers at 0.04% BAC or more.
• VC §23152(e): Rideshare and taxi drivers carrying a passenger at 0.04% BAC or more.

Drivers under 21 face additional charges under VC §23136 (zero tolerance, 0.01% BAC) and VC §23140 (0.05% BAC infraction).

What the prosecution must prove

To convict on a VC §23152(a) DUI, the prosecution must prove beyond a reasonable doubt that:

1. The defendant drove a vehicle, and
2. At the time of driving, the defendant was under the influence of an alcoholic beverage, a drug, or a combination of both.

To convict on a VC §23152(b) per se DUI, the prosecution must prove:

1. The defendant drove a vehicle, and
2. At the time of driving, the defendant had a BAC of 0.08% or more.

Both elements are commonly contested. “Driving” requires volitional movement of the vehicle, which can be an issue when a driver is found asleep in a parked car. The BAC at the time of driving (not at the time of testing) is what controls under §23152(b), and the gap between the two can be hours.

Common defenses to a Los Angeles DUI

The defenses below are routinely raised in LA County DUI cases. Whether any apply depends on the specific facts in the police report, dashcam and bodycam footage, the breath or blood test records, and the calibration logs.

• No reasonable suspicion for the stop: If the officer lacked specific, articulable facts to justify the traffic stop, all evidence obtained after the stop can be suppressed under Penal Code §1538.5.
• No probable cause to arrest: Field sobriety tests are voluntary in California, and their results are subjective. If the officer’s arrest decision rested on a flawed FST performance or an unreliable preliminary alcohol screening (PAS) device, the arrest itself can be challenged.
• Title 17 violations: California Code of Regulations Title 17 governs how breath and blood tests must be administered, calibrated, and preserved. Common violations include skipping the 15-minute continuous observation period before a breath test, failing to use two breath samples within 0.02 of each other, expired calibration, and improper blood draw or storage. Title 17 violations create grounds to exclude or impeach the chemical test result.
• Rising BAC defense: Alcohol absorbs into the bloodstream over time. If the BAC at the time of testing was higher than at the time of driving (because the last drink had not yet fully absorbed), the per se charge under §23152(b) is unsupported.
• Mouth alcohol contamination: Residual alcohol from burping, GERD, dental work, or recent consumption can inflate a breath result above the actual lung-air reading.
• Medical conditions: Diabetes, ketogenic diets, and GERD can produce false positives on breath devices.
• Trombetta motion: Under California v. Trombetta, 467 U.S. 479 (1984), if the police failed to preserve a second breath sample or destroyed evidence the defendant could have used to challenge the test, the result may be excluded.
• Pitchess motion: Under Evidence Code §§1043 to 1045, the defense can move to discover prior complaints against the arresting officer for dishonesty, racial bias, or excessive force. Useful when officer credibility is the central issue.
• Miranda violations: Statements made during custodial interrogation without Miranda warnings can be suppressed.
• Independent blood test: A driver who took a breath test has the right to an independent blood sample. Failure of the agency to facilitate this can support exclusion.

Penalty ranges for a Los Angeles DUI

First offense (misdemeanor, no injury, no prior)

• Up to 6 months in county jail (rare on a first offense without aggravating facts)
• Base fine of $390 to $1,000 plus penalty assessments (total exposure typically $1,800 to $3,800)
• 3 to 5 years of summary (informal) probation
• 3-month or 9-month DUI school (AB 541 or AB 762, longer if BAC was 0.20% or higher)
• 6-month court-triggered license suspension under VC §13352
• Separate DMV Administrative Per Se suspension of 4 months under VC §13353.2 (challengeable at a DMV hearing requested within 10 days of arrest)
• Possible Ignition Interlock Device (IID) under VC §23575.3
• Mothers Against Drunk Driving Victim Impact Panel

Second offense within 10 years

• 96 hours to 1 year in county jail (mandatory minimum of 96 hours)
• 18-month or 30-month DUI school
• 2-year license suspension (eligible for restricted license with IID after 90 days)
• 3 to 5 years of probation

Third offense within 10 years

• 120 days to 1 year in county jail (mandatory minimum of 120 days)
• 30-month DUI school
• 3-year license revocation, designation as a habitual traffic offender

Felony DUI (filed under VC §23153 or §23550)

• DUI causing injury under VC §23153, or
• Fourth DUI within 10 years, or
• Any DUI with a prior felony DUI conviction
• Exposure of 16 months, 2, or 3 years in state prison, plus enhancements for great bodily injury under PC §12022.7

Reductions

• “Wet reckless” under VC §23103/§23103.5: A reckless driving involving alcohol. Counts as a priorable offense for 10 years but carries no mandatory jail, shorter DUI school, and no court-triggered license suspension.
• Dry reckless under VC §23103: Reckless driving with no alcohol designation. Not priorable as a DUI.
• Exhibition of speed under VC §23109(c): A 2-point traffic infraction or misdemeanor that is sometimes available in weak cases.

What happens at a Los Angeles DUI arraignment

DUI cases in Los Angeles County are heard in the misdemeanor calendar of the courthouse covering the arrest location. Common DUI courts include:

• Airport Courthouse (11701 S La Cienega Blvd, Los Angeles) for LAX-area, Westchester, and Inglewood stops
• Van Nuys Courthouse (6230 Sylmar Ave, Van Nuys) for the San Fernando Valley
• Metropolitan Courthouse (1945 S Hill St, Los Angeles) for central LA DUIs filed by LAPD
• Clara Shortridge Foltz Criminal Justice Center (210 W Temple St, Los Angeles) for some downtown matters
• Beverly Hills Courthouse (9355 Burton Way) for Beverly Hills and West Hollywood
• Pasadena Courthouse (300 E Walnut St) for Pasadena and the foothill cities
• Long Beach Courthouse (275 Magnolia Ave) for South Bay matters

At arraignment, the court reads the complaint, sets bail or releases on own recognizance, and takes a plea. Most clients plead not guilty so the defense can obtain discovery and begin pretrial litigation. Under Penal Code §977, a represented defendant in a misdemeanor case can authorize counsel to appear at most court dates without personally attending, which avoids missed work for the client.

After arraignment, the case moves to pretrial conferences where the defense reviews discovery, files motions, and negotiates with the prosecutor. If no resolution is reached, the case is set for trial within statutory speedy-trial deadlines under PC §1382 (30 days for in-custody, 45 days for out-of-custody misdemeanors).

The DMV side of a DUI

A California DUI arrest triggers two separate cases: the criminal case in court and an administrative case at the DMV. The DMV pursues an Administrative Per Se suspension based on the chemical test result, independent of the criminal outcome. The driver has 10 days from the date of arrest to request a DMV hearing. If no request is made within that window, the suspension takes effect automatically 30 days after the arrest. Requesting the hearing also stays the suspension until the hearing is decided.

How the Law Office of Zak Fisher handles DUI cases

Each DUI case starts with a free 20-minute consultation to confirm the charge, the arresting agency, the court, the chemical test type, and any prior DUI history. If the case is taken, the fee is flat and quoted in writing before the engagement. The 10-day DMV hearing request is sent on day one when the timeline allows. Discovery is requested early, including all bodycam and dashcam video, the breath device’s most recent calibration logs, the officer’s training records, and the radio dispatch audio. Where the facts support it, motions are filed under Penal Code §1538.5, Evidence Code §1043 (Pitchess), and Trombetta to suppress or exclude evidence. The practice personally appears at every court date and answers texts and emails within one business day.

Contact

Law Office of Zak Fisher
8335 W. Sunset Blvd., Suite 354
West Hollywood, CA 90069
Phone: (310) 818-7461
Email: info@zakfisherlaw.com
Hours: Monday through Thursday 10:00 AM to 4:30 PM, Friday 10:00 AM to 4:00 PM

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Frequently asked questions about California DUI

Is a first DUI a misdemeanor or a felony in California?

A first DUI under Vehicle Code §23152 is a misdemeanor unless someone was injured (Vehicle Code §23153) or the driver has a prior felony DUI within 10 years. Standard first-offense DUIs are misdemeanors with no mandatory jail in most LA County dispositions.

What is the legal BAC limit in California?

0.08% for standard drivers age 21 and over, 0.04% for commercial drivers and rideshare/taxi drivers carrying a passenger, and 0.01% for drivers under 21 under the zero-tolerance law in Vehicle Code §23136.

Do I have to take a field sobriety test?

No. Field sobriety tests are voluntary in California for drivers 21 and over who are not on DUI probation. Refusing FSTs is not a crime and is not a license suspension trigger. The preliminary alcohol screening (PAS) breath device at the roadside is also voluntary for drivers 21 and over not on DUI probation.

Do I have to take the breath or blood test after arrest?

Yes, if you have been lawfully arrested for DUI. California’s implied consent law in Vehicle Code §23612 requires submission to a chemical test of breath or blood after a DUI arrest. Refusal triggers a 1-year DMV license suspension on a first refusal, additional jail time if convicted, and the refusal can be used as evidence at trial.

How long do I have to request a DMV hearing?

10 calendar days from the date of arrest. If the request is not made in that window, the Administrative Per Se suspension takes effect 30 days after arrest. A timely request stays the suspension until the hearing is decided.

Will I lose my license after a DUI arrest in Los Angeles?

There are two separate suspensions to track. The DMV imposes a 4-month Administrative Per Se suspension on a first offense (challengeable at a DMV hearing). The court imposes a separate 6-month suspension under Vehicle Code §13352 if there is a conviction under §23152(b). Restricted licenses with an ignition interlock device are usually available shortly after either suspension begins.

Can a DUI be reduced to a wet reckless?

Yes, in cases with weaker evidence, borderline BAC, or significant Title 17 or constitutional issues. A wet reckless under Vehicle Code §23103/§23103.5 avoids a court-imposed license suspension, carries no mandatory jail, and shortens the DUI school requirement. It still counts as a DUI prior for 10 years.

How long does a DUI stay on my record in California?

A DUI conviction is priorable for 10 years for purposes of escalating future DUI penalties. The conviction itself remains on the criminal record indefinitely unless expunged under Penal Code §1203.4 after probation is successfully completed. A DMV driving record entry for a DUI lasts 13 years.

Can I get a DUI expunged in California?

Yes. Once probation is successfully completed (or terminated early under Penal Code §1203.3), a petition under Penal Code §1203.4 can withdraw the plea, enter a not-guilty plea, and dismiss the case. The conviction will still count as a prior for any future DUI and remains visible to law enforcement and the DMV, but most private background checks will reflect the dismissal.

How much does a DUI lawyer cost in Los Angeles?

Fees vary by complexity, number of priors, whether the case is filed as a felony, and whether it is resolved pretrial or goes to trial. The Law Office of Zak Fisher charges a flat fee per case, quoted in writing before engagement. The first 20 minutes of consultation are free for anyone facing a pending criminal charge in Los Angeles County.

Related defense pages

• Drug possession under Health & Safety Code §11377 and §11350
• Disturbing the peace under Penal Code §415
• First Amendment defenses in California misdemeanor cases
• About Zak Fisher

What actually happens in a Los Angeles DUI case

Day 1 — The stop and arrest

An officer pulls the driver over (or contacts them after a collision, sobriety checkpoint, or accident). The officer asks for license, registration, and insurance, looks for objective signs of impairment (odor of alcohol, red eyes, slurred speech, admission of drinking), and may request field sobriety tests (FSTs). The driver is generally not legally required to perform FSTs and is not required to take a preliminary alcohol screening (PAS) handheld breath test if over 21 and not on DUI probation — though officers often present the request as if it were mandatory. If arrested, the driver IS required under California’s implied consent law (VC 23612) to submit to a chemical test (breath or blood) at the station; refusal triggers a separate 1-year license suspension on top of any other DUI consequences.

Day 1 to 10 — DMV deadline

The arresting officer typically issues a pink temporary license (DS-367) and confiscates the driver’s license. The pink slip is the notice of suspension. The driver has 10 calendar days from the arrest to request an Administrative Per Se (APS) hearing with the DMV. Missing this deadline results in automatic license suspension at day 30. Defense counsel typically files the hearing request immediately and demands all DMV discovery (police report, breath test logs, calibration records).

Weeks 2 to 6 — Filing decision

The arresting agency submits the case to the prosecutor for filing review. For DUIs in the City of Los Angeles, the LA City Attorney typically files. For Santa Monica, Long Beach, Burbank, and a few other cities, the city prosecutor files. For unincorporated areas and certain other jurisdictions, the LA County DA files. The prosecutor decides whether to charge VC 23152(a) (driving under the influence), VC 23152(b) (driving with BAC of 0.08% or more), or both — and whether enhancements apply (BAC of 0.15% or higher, refusal, injury, accident).

Weeks 4 to 10 — Arraignment

Arraignment is the first formal court appearance. The court reads the charges, advises of the maximum penalties, and the defendant enters a plea — almost always “not guilty.” Bail and release conditions are addressed. With a PC 977(a) waiver and counsel, most DUI defendants do not need to personally appear at arraignment, though some courts require personal appearance for DUI cases with enhancements.

Weeks 6 to 16 — Discovery and pretrial motions

The defense receives the police report, body-worn camera footage, dispatch audio, in-car video, breath test logs, machine calibration records, and any blood test analysis. Pretrial motions commonly filed in DUI cases include:

• Motion to suppress under PC 1538.5 — challenging the basis for the stop or the validity of the chemical test.
• Pitchess motion — seeking the officer’s personnel records for prior complaints involving dishonesty, fabrication, or improper DUI investigations.
• Discovery motions — seeking breath machine accuracy records, calibration logs, and any maintenance issues.

Weeks 12 to 24 — Pretrial conference and plea negotiation

The pretrial conference is where defense and prosecution discuss the case. Common resolutions:

• Wet reckless (VC 23103.5). Reduction of a DUI to a wet reckless eliminates mandatory IID, shortens probation, and reduces DMV consequences. Most common reduction destination for borderline cases.
• Dry reckless (VC 23103). Reduction further to a non-alcohol-related reckless driving. Generally requires demonstrable weaknesses in the prosecution’s case.
• Reduction to exhibition of speed (VC 23109) or other non-DUI misdemeanors. Less common but possible in cases with serious problems.
• Standard DUI plea with negotiated terms — typically 3 years informal probation, fines, DUI school, ignition interlock (when applicable).
• Outright dismissal. Possible when key evidence is suppressed or the prosecution’s case has fundamental problems.

Months 6 to 12 — Trial or resolution

If the case does not resolve at pretrial, it is set for trial — typically a jury trial. DUI trials usually take 2 to 5 court days. The prosecution must prove either driving under the influence (impaired driving) or driving with a BAC of 0.08% or more (a per se violation). Defense strategies include challenging the breath/blood result, attacking the FSTs, presenting expert testimony on the rising blood alcohol defense, and impeaching officer testimony with body-cam inconsistencies.

The parallel DMV proceeding

The DMV’s Administrative Per Se (APS) hearing is a civil administrative proceeding entirely separate from the criminal case. The DMV has its own burden of proof (preponderance of the evidence, lower than the criminal beyond-a-reasonable-doubt standard). The DMV must prove: (1) the officer had reasonable cause to believe the driver was DUI, (2) the driver was lawfully arrested, and (3) the driver had a BAC of 0.08% or more (or refused the chemical test).

Outcomes at the APS hearing: (a) set aside (no suspension), (b) standard 4-month suspension (first offense, BAC 0.08% or higher, no prior), (c) 1-year suspension for refusal. A driver who loses the APS may still prevail in the criminal case — and a driver who wins the APS may still be convicted criminally. The two proceedings are independent.

Diversion considerations for DUI

Important: pretrial diversion under PC 1001.95 is statutorily excluded for DUI cases. However, two other diversion paths may be available for eligible defendants:

• Mental health diversion (PC 1001.36) — available where a qualifying mental disorder played a significant role. PTSD, bipolar disorder, and certain other diagnoses can support a 1001.36 request even in DUI cases.
• Military diversion (PC 1001.80) — available for current or former U.S. military service members whose substance abuse, PTSD, TBI, or other conditions resulting from military service contributed to the offense.

What to do right now if you’ve been arrested for DUI

1. Find your pink temporary license (DS-367) — this is the notice of suspension. Note the arrest date.
2. Calendar the 10-day DMV deadline from the arrest date.
3. Locate the citation or release paperwork with the court date and courthouse.
4. Save all evidence — text messages, photos, video, receipts, witness contacts.
5. Do not discuss the case with anyone except your lawyer.
6. Book a consultation immediately so the DMV hearing request can be filed and discovery can be preserved.