When facing DUI charges after being arrested for having a blood alcohol concentration of over .15%, the court is likely to sentence you with increased or aggravated penalties. A blood alcohol concentration of .15% is an aggravating factor, and you will face enhanced penalties, regardless of whether you are a first, second, or third time DUI offender. As part of the enhanced sentences, the court might require you to install an IID, take part in an extended DUI School, pay an increased fine, and face an extended jail term. We at the San Jose DUI Attorney Law Firm can help you avoid these penalties or negotiate for lesser penalties. Get in touch with us today if you are facing DUI charges.
Overview of VC23578 DUI Over .15%
As per California DUI laws, it is an offense to operate a motor vehicle when you have a BAC level of .08% or more. So, even if your BAC is .15% higher, you will still be charged with DUI per se. California lawmakers also understand that the risk of causing an accident increases with an increase in BAC levels. As an effort to try and reduce the risk of accidents by drivers with a high BAC level, the legislature introduced higher penalties for drivers who operate a car with a blood alcohol content of .15% or higher. Any time you are arrested and charged with having a BAC level like this, your sentence is enhanced. Having a BAC of .15% is twice the legal limit, which means the chances of a crash are very high because it is almost impossible to make sober decisions. Therefore, you are likely to be charged with:
- DUI as per VC 23152(a)
- Operating a car with a BAC level of .08% or higher as per VC 23152(b)
- DUI over .15% or higher under VC 23578
When the prosecutor is building a case against you, they will be keen to note the BAC level on their report, which will be used as the fact that you have a DUI aggravating factor. You will face the standard DUI charges but with an additional aggravating factor.
Remember, the chemical tests must be conducted the right way for the results to be held as facts in court. If the tests are not administered the right way, your defense attorney can challenge them and get the charges dismissed or reduced. When determining your BAC levels, the arresting officer must take a blood or breath test. If you opt for a breath test, the officer will use a breathalyzer whose results are known immediately. If you choose a blood test, you must wait for several days after the blood sample has been taken and sent to the laboratory for analysis, before getting the results.
The prosecution gathers evidence, including test results, to build a DUI case against you. Note that the amount of alcohol consumed will result in impairment based on many factors. These factors include age, weight, health conditions like diabetes, number of drinks, and gender. However, regardless of these factors, the more alcohol you consume, the higher the chances of impairment, which hinders your ability to operate a motor vehicle safely. When the BAC level is .08% or more, it becomes unsafe to drive. The level of risk of an accident increases when the BAC level goes up to .15% or higher. At this stage, your judgment becomes poor, and you can no longer pay attention or make good judgment. It is for this reason that people arrested driving at the BAC level face enhanced penalties. The penalties will increase further if you are arrested for driving with an alcohol concentration of .20% in your bloodstream because of the increased risk of causing an accident.
Elements the Prosecutor Must Prove in DUI Over .15% Case
As said above, the prosecution begins to build a case against you after you have been arrested. They will assess the arresting officer’s report and get the chemical test results so that they can build a case and file charges. If the results of the chemical test show you had a BAC of .15%, the prosecution attorney is likely to file a criminal complaint. Drivers with such high BACs are considered a danger to themselves, passengers, and other road users. The court, therefore, gives weight to the issue of high BAC. The prosecution must establish the following elements to convict you under VC 23578.
You were Driving or Operating a Motor Vehicle
One critical fact that must be proved in court is whether you as the defendant, was driving at the time of the arrest. The arresting officer must have made an observation that you were driving while intoxicated before making an arrest. The officer must also make other observations to prove that you were driving.
If drunk driving resulted in a car crash, police officers might not be present to make an observation. However, the prosecution might rely on witness statements on the police report to show the court that you were driving. If you were sleeping or sitting in the driver’s seat, the prosecution could quickly prove you were driving or moved the car. Also, if the car keys were in the ignition, it is evidence that you were driving.
At the time of the Act, Your BAC Level was .15%
When proving this element, the prosecution refers to the chemical test results. If the BAC level was .15% at the time of driving, you would be found guilty. If the blood alcohol content was .15% after driving or before, the court will not sentence you because the test results were not acquired when you were driving. The prosecution will use expert witnesses to prove this element. If they fail to show the BAC level was .15% or higher, you can still be convicted for driving under the influence.
Penalties for VC 23578 Charges
In California, driving with a BAC of .08% is illegal under DUI per se, and the consequences are severe. Driving with a BAC of .15%, on the other hand, is an aggravating factor with enhanced penalties. These penalties include:
1. Fines and Jail Time
First and second-time DUI offenders are subject to a fine of between $390-$1000. Third time DUI offenders part with one thousand eight hundred dollars in fines. The amount of fine to be paid is dependent on the prosecution’s evidence, and the kind of defense your attorney builds.
On the issue of incarceration, if it is your first DUI conviction, you will face as much as one hundred and eighty days in prison. Second and third time DUI offenders face no more than twelve months of incarceration.
2. DUI School
If you have been convicted of a DUI where your BAC level was .15%, you must attend a mandatory DUI alcohol or drugs program. VC 23578 provides the minimum period for the program as six months. The court might also order you to attend an AB1353 class for nine months. Usually, the court sentences you to a DUI school in place of jail time. However, the program comes with conditions such as community labor or any other service that the court might deem necessary.
First-time offenders with a BAC level of less than .20% attend DUI school for three months, which involves 30 hours of instructions. The classes are called AB 541 class. When the court recommends a DUI program, you must notify them of your enrollment. Most programs inform the DMV of the admission immediately. The DMV then notifies the court. If the program you opt for does not do this, you will have to inform the court yourself before three weeks after the conviction.
The court expects you to complete the drug or alcohol programs with a stipulated time. After completion, the school will send a certificate of completion to the DMV, which in turn will notify the court. Failure to complete the program or dropping out of the program will force the court to order you to serve the original jail time.
3. License Suspension
The period for license suspension doesn’t increase when one is arrested for DUI over .15%. You will get the usual DUI suspension, but the DMV cannot restore your driving privileges unless you complete the DUI school program. If the court requires you to undertake the DUI program for 180 days, you can only get the license after you have successfully completed the program within this time.
At the period of suspension, you will be issued a restricted license. Do not be tempted to drive on a suspended license because a conviction for this offense will result in severe consequences. The only way you can avoid the penalties of driving on a suspended license is by asserting that you were not aware of the suspension.
4. Ignition Interlock Device Installation
As part of the punishment for violating VC 23578, the court might order you to install an IID in your vehicle. The device is installed in the dashboard and prevents the car from starting when it detects alcohol in your breath. The installation must be done on all your vehicles if you own more than one. Additionally, they must be fitted by a professional to ensure they function correctly.
Once the device is fitted, every time you get into the car, you have to blow in the device. If you don’t blow, the vehicle will not start. Five to fifteen minutes after starting the car, the device will request another sample. Forty-five minutes later, it will ask you to blow again. The device takes up to six minutes to provide results for the sample, which means you don’t have to be afraid of wasting a lot of time on the road because of having to stop at intervals of 45 minutes.
If alcohol is detected in your breath when you are driving already, the car isn’t going to stop. However, the device will record a fail, and this will be used against you in court. Note that you cannot request another person to submit a breath sample on your behalf because the device already has your breath pattern, and that is what it can only recognize.
Aside from these penalties, your DUI attorney can request for alternative sentencing. Instead of jail time, you might be sentenced to house arrest or mandated to live in a sober environment.
Legal Defenses to DUI Over .15% Charges
Despite this charge being a serious one, your DUI attorney can get a plea bargain and have the charges reduced. He or she can also poke holes in the prosecution’s evidence, thus getting the charges dismissed. Defending a DUI charge is very difficult, especially where the jury is instructed to consider you were driving while drunk, and the test results were taken within 180 minutes after the arrest.
Just because you were arrested with a BAC level that is twice the legal limit doesn’t make you automatically guilty of the offense. With an attorney, you can build a strong defense to have the case dismissed or charges reduced. Below are some of the conventional legal defenses your attorney can apply to fight the charges:
Your BAC was Within the Legal or Prescribed Limits
If the chemical tests were conducted after you have been arrested, your attorney could argue that the results were below the prescribed BAC limit, regardless of what the testing kit showed. The attorney must give reasons for the argument.
Testing kits can give the wrong results where blood alcohol is rising. It happens where you, as the defendant has been drinking then decides to drive. If you are arrested at such a time, the alcohol is still being absorbed in the body. If a test is taken after the arrest, the results might indicate higher blood alcohol concentration than the actual level when you were driving. An excellent DUI attorney can claim that in the period between being arrested and being moved to the police station or hospital for the test, the BAC level rose. It means that if you took a breath test in the station and showed the BAC was .15%, the blood alcohol concentration might have been .06% when you were driving, which is within the prescribed limit. When proving the blood alcohol was on the rise, an expert witness will be required to demonstrate to the jury how your argument is possible.
Title 17 Violation
This code of regulations provides guidelines for conducting DUI chemical tests. A violation of these regulations can lead to the removal of evidence, which might consequently result in a dismissal or reduction of charges. The rules of Title 17 require that the testing kits be adequately stored and undergo regular maintenance and calibration. It also provides regulations on who should take a blood sample, how the sample should be taken and stored. An extensively experienced attorney will investigate the whole process of how the chemical tests were conducted to find out if there was any violation of the law. If he or she successfully proves the provisions of the Title were violated, you will be acquitted.
Contaminated Breath Samples
Your attorney can also assert that the breath sample was contaminated, which is why it showed a high BAC level. Some of the factors that can lead to the rise of BAC levels, leading to false results include:
- Mouth alcohol
- Acid reflux
- Radio waves interference with the testing kits
- External temperatures
These factors can taint the breath sample taken, making the results appear higher than they actually are. If you can prove that any of these factors affected the outcome, chances of being acquitted or getting the charges reduced are high.
DUI Over .15% DMV Hearing
After an arrest for a DUI over .15%, the police officer confiscates your driver’s license, just like in the standard DUIs. A revocation order is then issued, which acts as a suspended license for one month. If this period ends, the license is automatically suspended. To have it reinstated, you have to apply afresh and pay application fees. You must also complete a DUI program.
You can prevent the automatic license suspension by requesting for DMV hearing within ten days after the arrest. When you do this, the license suspension will be put on hold until the DMV hearing is completed. If you win the hearing, you will retain your license; but still, it can be suspended if you lose the DUI case in court. If the DMV succeeds in suspending the license, you can apply for a restricted license, which allows you to drive to restricted areas.
Other Factors that can Result in Aggravated DUIs or Enhanced Penalties
DUI over .15% is considered an aggravating factor. It means you will face enhanced penalties, whether it is your first, second, or third DUI conviction. Other factors that can aggravate DUI charges include:
1. DUI Causing an Accident
You are subject to enhanced penalties if you drive under the influence of alcohol or drugs, causing an accident. Accidents can result in injuries, fatalities, or property damage. If you are charged with a DUI that caused these losses, you will face additional penalties on top of the normal DUI penalties. You might be required to restitute the owner whose property you damaged, and in case a person was injured, the DUI charge might be elevated to a felony.
2. Child Endangerment
If you were arrested operating a car while under the influence and you had a passenger who was below 14 years, the court will increase your punishment. You might get an enhanced jail time of three months or end up being charged with child endangerment. Exposing a minor to risk is a wobbler, and the potential penalties are not more than 72 months’ state imprisonment.
3. Refusing to Submit to a Chemical Test
Once you are issued with a driver’s license in California, accepting the license means you have implied consent to chemical tests after a DUI arrest. Refusal to submit to a chemical test is considered an aggravating factor in DUI and can lead to enhanced penalties. The increased penalties include detention in jail for two days or a mandatory DUI school for nine months.
4. Reckless Driving
You would be subject to aggravated DUI or enhanced penalties if you were arrested for reckless driving with a BAC level of .08% or more. Reckless driving endangers property and human beings, which is why you get an additional two months of incarceration on your sentence.
5. DUI Hit and Run
Hit and run cases are taken very seriously by prosecutors. If you are convicted of a DUI hit and run, you will face an extra one hundred and eighty days of license suspension, state incarceration for 48 months, or an extra-fine of between one thousand to ten thousand dollars.
6. DUI while on Probation
In the event you are arrested for drunk driving while you are under probation, the penalties for a conviction are going to be enhanced. As part of the probation terms, you are not supposed to be driving with any blood alcohol concentration. You will face additional license suspension, jail sentence, and a separate charge of violation of probation conditions.
7. DUI on a Suspended or Expired License
If you are arrested for DUI when you have an invalid license, the prosecutor will elevate the DUI charge to aggravated DUI. The court might also order a mandatory jail term of two days.
8. Prior DUI Conviction
If you have a prior DUI conviction on your record and you are arrested for a first or subsequent DUI, you are subject to enhanced penalties. If you have one prior conviction within ten years, the penalties are mandatory DUI school, license suspension, and jail time. For those with three prior convictions within ten years, the charges are elevated to felony status.
Find a DUI Defense Attorney Near Me
If you are facing VC23578 DUI over .15%, you can contact the San Jose DUI Attorney Law Firm at 408-777-6630. Our attorneys have experience in all types of DUIs, including aggravated DUIs. Contact us today for a free consultation.