The court would sentence you with enhanced penalties if your BAC level was 0.15% or higher at the time of your arrest. Having a high BAC level is an aggravating factor that can lead you to face more grievous penalties, regardless of whether it is first, second, or third time DUI. At the San Jose DUI Attorney Law Firm, we have represented numerous clients in San Jose facing DUI over 0.15% charges. We promise to help you get an acquittal, or have your charges reduced.
The Legal Definition of DUI
As illustrated by California’s Vehicle Code 23152(a), a person will be held to have committed the offense of DUI if that person drives while under the influence of alcohol or drugs. VC 23152(a) is California’s primary law on DUI.
California has also enlisted prescribed BAC limits, which everyone should observe. The prescribed BAC limit for regular drivers is 0.08%, while that for commercial drivers is 0.04%. Teenagers and individuals serving probation terms are not permitted to drive if their BAC is 0.01% or higher.
Since the regular BAC limit in California is 0.08%, a BAC of 0.15% or higher raises eyebrows. Having a BAC of over 0.15% implies that you exceeded California’s regular blood-alcohol content limit by over 50%.
DUI Per Se
When you submit to a chemical test, and your BAC results show 0.08% or higher, you will be deemed to have committed the offense of DUI per se. This means that if you have a BAC level of 0.15% or higher, the prosecution may charge you of DUI per se.
The main DUI per se California law is VC 23152(b). This code states that a person will be held to have committed an unlawful act if he drives a motor vehicle with a BAC of 0.08% or higher. There are also other instances where a person can be charged with DUI per se. According to VC 23152(d), commercial drivers should not exceed a BAC level of 0.04%. If they do, the prosecution can charge them with commercial DUI per se. Also, as per Vehicle Code 23140, individuals who are below 21 years old may be charged with the offense of DUI per se if their BAC level is 0.05% or higher.
DUI Over 0.15%
DUI over 0.15% encompasses three different offenses:
- Driving under the influence of alcohol, in contravention of vehicle code 23152(a)
- Driving when your BAC is over 0.08%, thus in violation of VC 23152(b)
- Driving when your BAC level is 0.15% or higher, in contravention of VC 23578 – California’s primary law on DUI over 0.15%
When your BAC level is 0.15% or higher, the prosecution will charge you with DUI in violation of VC 23578. You will still face the normal DUI charges, but with the presence of an aggravating factor – having a BAC of 0.15% or higher.
Not all offenses of driving under the influence are similar. The higher the blood-alcohol concentration, the greater the punishments you risk facing. A DUI of over 0.15% will result in enhanced penalties. Here are some examples of enhanced penalties:
- A jail term increase of 48 hours to 90 days
- Extension of the length of the completion period of the DUI educational program
- An order to pay additional fines
- A probation term increase
- An order to install an ignition interlock device
- Suspension of your driver's license for an extended period
Before a prosecutor files criminal charges against you, he will carefully review all incident reports and any other evidence that he considers being relevant. He will also pay close attention to the results of your BAC test. If you had a BAC of 0.15% or higher, he will add the '0.15% or higher' allegation when filing the criminal complaint. If your BAC is over 0.20%, he will file a different high BAC allegation, under VC 23578(b). California prosecutors usually refer to DUIs over 0.15% as aggravated DUIs.
What the Prosecution Must Prove for You to Be Convicted of DUI Over 0.15%
It is a presumption of the law that if your blood-alcohol level was 0.15% or higher when you were put under arrest, you are automatically guilty of DUI. For you to be convicted under VC 23578, the prosecution must prove these two crime elements:
- You were driving a vehicle
- When you were driving, your BAC was 0.15% or higher
These facts may seem to be rather straightforward, but the prosecution can find them difficult to prove. Here is a detailed explanation of them:
1. You Were Driving a Vehicle
One of the most critical facts that the prosecution must prove in a VC 23578 case is whether the defendant was driving at the time of the arrest. If the law enforcement officer had motioned you to pull over and he observed you driving, then this fact is completely satisfied. However, this is not always the case.
Some individuals are usually put under arrest for driving under the influence in an accident scene. Others are arrested when seated or asleep inside their vehicles. If the prosecutor cannot establish the fact that you had moved the car for a certain distance, your case will be dismissed.
2. At The Time You Were Driving, Your BAC was 0.15% or Higher
It is not unlawful to have a BAC of 0.15% or higher when you are not driving. It does not matter if your BAC is 0.15% or higher before or after you drove. What matters is if your blood-alcohol content was 0.15% or higher at the time when you were driving.
For instance, maybe you hit another person while driving. This person incurs some minor injuries, but you voluntarily take him to the hospital and give him all your contact details. After you have drunk your eighth beer bottle, law enforcement officers arrive at your residence to interrogate you. They carry out a DUI investigation, and your BAC reads 0.17%. In such a scenario, the court won’t convict you of DUI; since the high BAC results were not acquired when you were driving.
This scenario is quite common in San Jose. Nevertheless, prosecutors can still charge you of DUI even if they know that the BAC test was not taken when you were driving.
How to Fight VC 23578 Charges
For you to fight VC 23578 charges effectively, you should hire a lawyer who has specialized in DUI cases. These attorneys know how to navigate around your DUI over 0.15% charge, and they may help you to become acquitted or have your case dismissed. Also, they can enter into a plea bargaining agreement with the prosecution for you to obtain a reduced charge. If you become convicted, they can persuade the court to sentence you with less harsh penalties.
Note that judges usually instruct jury members in VC 23578 trials that if the BAC test was carried out within three hours after you drove, they might infer (but aren't required to) that you were intoxicated while driving. This is one of the most crucial reasons why you should hire a DUI attorney if you have been charged under VC 23578. It is quite challenging to defend a DUI over 0.15% charge all by yourself.
Most people believe that a BAC that is double California's legal blood-alcohol concentration level, results in an automatic DUI conviction. This belief is not true. The defenses to VC 23578 are usually centered on proving that the BAC result was inaccurate, and you didn’t exceed California’s blood-alcohol content limits while driving. Here are some of them:
1. Your BAC Did Not Exceed California’s Prescribed Blood Alcohol Content Limits
Even if the testing kit showed that your BAC was 0.15% or higher, your defense attorney could still assert that your BAC was below California's prescribed blood alcohol content limits. This is especially in situations whereby the chemical test was taken after the defendant was put under arrest.
Often, the testing kit can show that you have a high BAC level if your blood-alcohol was on the rise at the time of the arrest. Having your blood-alcohol on the rise means that alcohol was still being absorbed into your bloodstream when the law enforcement officer motioned you to pull over.
If you took the test at the police station, you could assert that your BAC rose at the interval when you were arrested up to when you were transported to the station. This means that if you blew 0.16% at the police station, your blood alcohol concentration might have been 0.07% when you were driving. Rising blood alcohol is one of the primary defenses used in VC 23578 cases because what the prosecution must prove is that your BAC exceeded 0.15% when you were driving.
Your attorney can hire DUI defense experts such as forensic toxicologists to demonstrate that your blood alcohol was on the rise at the time when you submitted to the BAC test. These experts will calculate your real BAC level when you were driving, and they may convince the court that it didn’t exceed California’s prescribed legal limits during that time. It is critical for the jury to understand how your BAC affects your VC 23578 charges since the BAC result is the rock of a DUI over 0.15% charge.
2. Tainted Breath Samples
Several factors can make a BAC breath testing kit to produce falsely high results. Some of these factors include:
Mouth Alcohol
The term' mouth alcohol' refers to the residual alcohol that lingers in the mouth. Mouth alcohol may be brought about by:
- hypoglycemia or diabetes
- regurgitation
- following a ketogenic diet
- belching/burping
- dental work
- medicine containing alcoholic substances, breath spray, or mouthwash
When there is residual alcohol inside your mouth, it can cause a falsely high reading on the chemical breath testing kit. This makes mouth alcohol to be one of the most common defenses to DUI over 0.15% charges.
Acid Reflux/GERD
Gastroesophageal Reflux Disease (GERD), acid reflux, and heartburn are examples of medical conditions that can be utilized as defenses to aggravated DUI. These conditions trigger residual mouth alcohol that can cause inflated BAC levels.
Additional Factors
Other factors can affect your breath sample. Some of them include:
- radio frequency interference 'RFI' (radio waves from police cars and cellphones can affect the testing kits and your circulatory system)
- the external temperatures, and the temperature of your breath
All these factors can inflate your BAC levels. This extremely high BAC may indicate that you were intoxicated, when in reality – you were sober.
3. Title 17 Violations
Title 17 of the California Code of Regulations enlists how law enforcement officers should conduct DUI blood and breath tests. Any violations of Title 17 can help you get an acquittal or a dismissal, or at the very least – a reduction of your charges.
Title 17 has rules that cover the storage, maintenance, operation, and collection of your breath samples. Moreover, the authorities will be held to have violated Title 17 if they didn’t maintain the testing kits in good, working condition or if they were not correctly calibrated.
Furthermore, Title 17 enlists who should draw your blood and how the blood should be withdrawn, collected, and stored. Your DUI attorney can diligently conduct an investigation to find out whether the police officers observed all the provisions of Title 17.
If your attorney successfully proves that the authorities violated the provisions of Title 17, you will be acquitted. This is because all the evidence which they gathered from the testing kits will be excluded.
DMV Hearings for DUIs over 0.15%
When a police officer arrests you for DUI over 0.15%, he will confiscate your license. Then, he will issue you with a revocation or suspension order that will act as your temporary license for up to 30 days. When these 30 days lapse, your license will be suspended for a fixed period depending on the DUI you have been charged with. For you to reinstate it, you will have to repeat the license application process. You will also be required to show proof of completing a DUI educational program and pay the application fee.
Sometimes, you may be given the option of obtaining a restricted license. This license will permit you to drive to and from work and your DUI school. You may also be instructed to install an IID in your vehicle for a specific period, and you will be responsible for the installation and maintenance costs.
As you can see, the administrative penalties for DUIs over 0.15% are extremely severe. Note that the DMV will commence its administrative proceedings immediately, regardless of whether you have been prosecuted or not.
You should request a DMV hearing within ten days from the date when you were arrested for protecting your driving privileges from being withdrawn. DMV hearings are typically informal, and they can even be conducted via the phone. The hearing officer will listen to all the evidence the government presents, and give you a chance to defend yourself. Even though DMV hearings are informal, you should hire an attorney to represent you since it is your license that is at stake. Also, the outcome of your DMV hearing will largely affect your DUI court trial.
Other Factors That Can Result in Aggravated DUIs
Besides having a BAC of 0.15% or higher, other factors can elevate the charge of simple DUI to aggravated DUI. Here are some of them:
1. DUI Resulting in an Accident
When a person drives under the influence, he will most likely cause an accident since he is not in his right state of mind. This accident may cause property damage, grievous bodily injuries to another person, or even death.
Just like a BAC of 0.15% or higher, a DUI causing an accident can lead to enhanced penalties. For instance, a convict may be ordered to pay additional fines or restitute the owner of the damaged property.
If the accident caused grievous bodily harm to another person, you might be charged with felony DUI. This may lead to a state prison sentence of sixteen months, two years, or three years. A DUI causing death has the potential of resulting in life imprisonment and a strike on your record pursuant to California's Three Strikes Law.
Also, in all DUIs causing an accident, the affected parties still have a right to institute personal injury claims against you to obtain compensation. Therefore, if you have been arrested for DUI causing an accident, you may face up to three separate legal proceedings: the DMV hearing, the DUI court trial, and the personal injury lawsuit.
2. DUI with a Passenger below 14 Years Old
If you had a child who is below 14 years old in your vehicle at the time when you were arrested for DUI, the court would subject you to enhanced penalties such as increasing your jail term for up to 90 days. Additionally, you may be charged with the offense of child endangerment. Child endangerment is a wobbler, and it can be brought as either a misdemeanor or a felony. Its penalty is a state prison sentence of a maximum of six years.
3. DUI Failing to Submit to the BAC Chemical Test
When you accept your license, it is deemed that you have given your implied consent to submit to a breath or blood test when you are arrested for DUI. If you refuse to take the BAC test, the authorities will honor your refusal; but your DUI charge will be classified as an aggravating DUI. This has the potential of increasing your jail term for up to 48 hours upon conviction. Also, you may be required to attend a DUI school for nine months.
4. DUI While Serving a Probation Term
If you have been arrested for DUI and you are still on probation, you will most likely face enhanced penalties. As per California’s DUI laws, individuals serving probation terms should not drive if their BAC is 0.01% or higher. This means that if you are on probation, you should not drive if you have any amount of alcohol in your bloodstream.
A DUI, while serving a probation term, could result in a jail sentence and an order to suspend your license. You may also face further court hearings for violating the conditions of your probation.
5. DUI on an Expired or Suspended License
If you do not have a valid license at the time when you have been arrested for DUI, the prosecutor will charge you with aggravated DUI. Lack of a valid driver’s license can also make the authorities issue you a mandatory county jail sentence of 48 hours.
6. DUI on a Restricted License from a Prior DUI
A restriction on your license from a prior DUI and a further DUI arrest can result in extremely severe penalties. The prosecution department can charge you with a violation of VC 14601.2, an offense that carries a minimum jail term of ten days, additional fines, and an order to install an ignition interlock device in your vehicle.
7. DUI Reckless Driving or Speeding
The prosecution would charge you with aggravated DUI if you were speeding or driving recklessly at the time of the arrest. Because such actions can place property and human life in danger, a combination of reckless driving and speeding can increase your jail term by 60 days.
8. DUI Hit and Run
Sometimes, drivers may flee the DUI accident scene out of fear. California prosecutors take the charge of DUI hit and run very seriously. Besides an additional six-month suspension of your license, you may risk facing a state prison sentence of up to four years and hefty fines that may range from $1,000 - $10,000.
Find a San Jose DUI Attorney Near Me
Our lawyers at the San Jose DUI Attorney have specialized in all manners of DUI cases, ranging from simple DUI to aggravated DUI. Never assume that your DUI over 0.15% case is indefensible. Our experienced San Jose DUI attorneys pride themselves in being able to scrutinize all the details of your arrest to come up with an excellent defense strategy for you. Call us today at 408-777-6630 to jumpstart your case.
