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Vehicle Code 23578 DUI High BAC

California Vehicle Code Section 23578 VC provides for enhanced penalties for an excessive blood alcohol concentration (BAC) of 0.15% or higher. The excessive BAC statute is not a separate criminal charge, it allows the court to consider the driver's alcohol level in determining the penalties and whether or not to grant probation. 

Driving under the influence (DUI) of alcohol can lead to serious consequences. However, those consequences can be more severe with a high BAC, and may include loss of your license, fines, fees, and jail time. If you were arrested with enhanced charges under 23578 VC, contact a local East Bay DUI defense lawyer as soon as possible. 

Vehicle Code 23578 VC Text 

Under California Vehicle Code Section 23578

“In addition to any other provision of this code, if a person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person's blood of 0.15 percent or more, by weight, or the refusal of the person to take a breath or urine test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.”

What Are Enhanced Penalties?

There are aggravating factors that can increase the penalties in a DUI. For example, drunk driving with a minor in the vehicle carries additional penalties of 48 additional hours in the county jail on a first offense. A DUI with a high BAC can also result in enhanced penalties, including: 

  • Assessments, fees, and surcharges
  • Jail time
  • Community service
  • DUI school
  • Revocation or suspension of driving privileges
  • Ignition interlock device
  • Vehicle impoundment
  • Determining whether to grant probation
  • Additional or enhanced terms and conditions of probation

To apply the enhanced penalties under Vehicle Code 23578, the state has to prove all the elements of the underlying DUI, and that the driver's blood alcohol level was 0.15% or higher. If the prosecutor cannot prove every element of the offense, the defendant should be found not guilty. The elements of an excessive DUI include: 

  1. The defendant drove a vehicle; AND 
  2. When he or she drove, the defendant's blood alcohol level was 0.08 percent or more by weight.

Enhancement for Test Refusal

The court may also increase the penalties under VC 23578 if the driver refuses to submit to a chemical test. Drivers are required to provide a chemical test after a DUI arrest. Under California's “implied consent” laws, drivers are considered to have given consent to provide a breath, blood, or urine sample after an arrest for driving under the influence of alcohol or drugs.

Drivers in Contra Costa or Alameda County will face a 1-year license suspension from the DMV for refusing a chemical test, even if the driver is never convicted of a DUI. If the driver is convicted of a DUI and refusing a chemical test, then the court can consider the refusal in applying additional penalties or restrictions. 

How Many Drinks Does it Take to Get a High BAC?

A high BAC DUI limit is almost double the standard per se limit of 0.08%. The number of drinks that will put a driver over the legal limit depends on a number of factors, including weight, sex, hydration, medication, time, and type of drink. 

According to the DMV's BAC charts, the number of drinks it takes to get over the limit is based on the following “averages”:

  • 5 oz glass of wine (12% ABV)
  • 12 oz of beer (5% ABV)
  • 1.25 oz of liquor (40% ABV)

For example, a person who weighs 120 pounds can have a BAC of 0.15% or higher after 3 drinks. A person who weighs 200 pounds may have a BAC of 0.15% or higher after 5 drinks. However, the actual drink a person consumes may have double the amount of alcohol as the above averages. For example, a 16-ounce pint glass of a craft IPA with an ABV of 7.5% has double the alcohol of a 12-ounce can of Budweiser.

Defense Strategies for a High BAC DUI in California 

There are a number of defense strategies available to your East Bay DUI defense attorney, depending on your case. Defense options include challenging any illegally obtained evidence, providing expert witness opinions on the problems with chemical tests, or pointing out inconsistencies in the police officer's report and testimony. 

Challenging Chemical Test Results

A high BAC DUI is based on the driver having a BAC of 0.015%. If your defense attorney can cast doubt on the reliability or accuracy of these tests, a jury may not find the prosecutor proved the case beyond a reasonable doubt. 

There are many problems with the accuracy of chemical DUI testing. If the person conducting the test does not follow proper procedures, it can reduce the accuracy of the test results. If the machine is not properly cleaned, calibrated, and serviced, it can result in inaccurate testing. Medical issues, some foods and drinks, and medication may also falsely skew the test results. 

Defense Lawyer for 23578 VC Charges in Alameda and Contra Costa Counties

East Bay attorney Lynn Gorelick has more than 35 years of DUI experience, and understands the consequences of a high BAC DUI for California drivers. Representing drivers in Alameda County and Contra Costa County, Lynn Gorelick is familiar with the local DUI laws, local officers, and the prosecutors involved. Contact East Bay DUI lawyer Lynn Gorelick today.

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