The DUI Stop
Veh. Code 23152 — 0.08, implied consent, and a choice of blood or breath
In California it is unlawful to drive a vehicle under the influence of an alcoholic beverage, under the influence of any drug, or under their combined influence, and unlawful to drive with 0.08 percent or more of alcohol in the blood. A test showing 0.08 percent or more within three hours after driving creates a presumption, which can be rebutted, that the level was that high while driving.
| Who | The figure in the code |
|---|---|
| WhoAny driver | The figure in the code0.08 percent or more |
| WhoA driver of a commercial motor vehicle | The figure in the code0.04 percent or more |
| WhoA driver with a passenger for hire | The figure in the code0.04 percent or more |
| WhoA driver under 21 | The figure in the code0.01 percent or more, measured by a preliminary alcohol screening test or other chemical test |
The roadside breath screen is not the implied consent test, and the officer says so. A preliminary alcohol screening test is a field sobriety test. An officer who uses one tells the person it is being requested, that taking it does not satisfy the obligation to take a blood, breath or urine test later, and that the person has the right to refuse it.
A driver lawfully arrested for driving under the influence is deemed to have consented to a chemical test of blood or breath for alcohol, and of blood for drugs. The arrested person chooses whether the test is of blood or breath, and the officer gives that choice. The officer also says there is no right to have an attorney present before deciding or during the test, and that a refusal may be used in court.
| After a refusal or an incomplete test | What the department does |
|---|---|
| After a refusal or an incomplete testNo prior offense within 10 years | What the department doesSuspends the privilege to drive for one year |
| After a refusal or an incomplete testOne prior within 10 years | What the department doesRevokes it for two years |
| After a refusal or an incomplete testTwo or more priors within 10 years | What the department doesRevokes it for three years |
A first conviction under the driving under the influence section carries not less than 96 hours in county jail, at least 48 of them continuous, and not more than six months, and a fine of not less than $390 and not more than $1,000, with a license suspension. Causing bodily injury to another person while under the influence or at 0.08 percent or more is a separate offense.
An officer who serves a suspension notice takes the California license, and the notice itself is a temporary license valid for 30 days from the date of arrest. A person with hemophilia, or a heart condition treated with an anticoagulant, takes a urine test instead of a blood test.
Sources for this section (6)
- Veh. Code 23152 — Driving under the influence
- Veh. Code 23612 — Implied consent to chemical testing
- Veh. Code 13353 — Suspension or revocation for refusing a chemical test
- Veh. Code 23136 — A person under 21 driving with a blood alcohol concentration of 0.01 percent or more
- Veh. Code 23536 — Punishment for a first driving under the influence conviction
- Veh. Code 23153 — Driving under the influence and causing bodily injury
Legal information, not legal advice. Verified as of September 2026. Applying it to a particular situation is the work of a licensed California attorney.