California Vehicle Code Section 23152(d) VC is known as a commercial DUI. Driving under the influence (DUI) as a commercial driver has greater restrictions and may have more serious consequences for the driver, including suspension of their CDL or permanent loss of a CDL. If you were arrested on charges of 23152(d) VC, contact a local East Bay DUI defense lawyer as soon as possible.
Vehicle Code 23152(d) VC Text
Under California Vehicle Code Section 23152(d):
It is unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle.
It is a rebuttable presumption that the person had 0.04% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04% or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.
What is a Commercial Vehicle?
A “commercial motor vehicle” means any vehicle or combination of vehicles that requires a class A or class B license. A commercial motor vehicle also includes those that require a class C license endorsement issued for a passenger transportation vehicle designed, used, or maintained to carry more than 10 persons including the driver; school bus; tank vehicle; or a vehicle carrying hazardous materials.
Elements of the Offense
To find the defendant guilty in a criminal trial, the prosecutor or district attorney (DA) needs to prove every element of the offense “beyond a reasonable doubt.” If there is any doubt that even one element is not met, you should not be found guilty.
Vehicle Code 23152(d) VC
Under the Judicial Council of California Criminal Jury Instructions, to prove the defendant is guilty of the 23152(d), the state has to prove:
- The defendant drove a commercial motor vehicle; and
- When he or she drove, the defendant's blood-alcohol level was 0.04 percent or more by weight.
The 0.04% limit is not based on the driver being drunk or impaired. The 0.04% limit is a per se DUI, with a limit for blood alcohol concentration (BAC) of 0.04% or higher, as tested by a breath or blood test. A commercial driver commits a per se DUI simply by having a high enough BAC, even if the driver did not show any signs of impairment.
How Many Drinks Are Over the Limit for a Commercial Driver
How many drinks that will put a driver over the legal limit is different for every person. Alcohol absorption affects different people in different ways. The biggest factor may be weight, with heavier people generally able to consume more alcohol before their BAC goes over the limit. However, other factors that impact a person's BAC may include:
- Food intake
- Water intake
For example, two truck drivers meet up to take their lunch break at a restaurant. Both drivers order one bottle of beer to go along with their meal. One driver weighs 200 pounds and would not likely be over the 0.04% limit based on one beer. The other driver weighs 120 pounds and may likely be over the limit for drinking the same amount of beer.
The number of drinks that will put you over the limit also depends on the drink. Not all alcoholic drinks are served equally. According to the DMV's BAC charts, drinks are based on the following “averages”:
- 5 oz glass of wine (12%)
- 12 oz of beer (5%)
- 1.25 oz of liquor (40%)
Many people who order a drink are not served alcohol at these averages. For example:
- Many California Zinfandels and Petit Sirahs have an alcohol by volume (ABV) of 14.5% or higher. Some restaurants and wine bars serve 6 ounce glasses of wine. Many popular canned wines are sold in 12 ounce cans, with more than double the above “average.”
- A 16-ounce pint glass of an IPA with an ABV of 7.5% (like Racer 5 IPA) has twice the alcohol of a 12-ounce bottle of 5% beer.
- A stiff mixed drink may have more than two “servings” of alcohol. A Trader Vic's Hurricane has 4 ounces of 40% rum, more than 3 times the alcohol of the “average” serving.
Penalties for a Commercial DUI in California
In addition to any other penalties, (jail, fines, DUI school, etc.), if a driver of a commercial motor vehicle violates 23152(d) and the court notifies the DMV, the DMV must disqualify that driver from driving a commercial motor vehicle for 1 year. If the driver is convicted of a second DUI violation, the DMV will impose a lifetime ban on that driver's right to drive a commercial motor vehicle.
Defense Strategies for a Commercial DUI in California
The per se limit for a commercial DUI is half that of a regular DUI (0.04% compared to 0.08%). Even a small error in the chemical test can take away a driver's CDL and hurt their ability to earn a living. The best option to challenge a CDL DUI may be to challenge the chemical breath and blood tests.
If the police officer performing the chemical tests is not properly following test requirements and protocols, it may result in inaccurate test results. Your East Bay DUI defense lawyer can recover police records, review police footage, and use the officer's testimony to find problems with the testing that could put the reliability of these tests in doubt.
Defense Lawyer for 23152(d) VC Injury DUI Charges in Alameda and Contra Costa Counties
A commercial DUI can harm a commercial driver's career and a 2nd DUI could mean a permanent loss of their Commercial CDL. With so much at stake, it is important to talk to a lawyer who understands the local DUI laws, how police operate, and the reputation of the judge in your case. East Bay attorney Lynn Gorelick has more than 35 years of DUI experience, and understands the consequences of a DUI for California truck and commercial drivers. Contact Alameda County and Contra Costa County DUI lawyer Lynn Gorelick today.