23578 VC – DUI Penalties for High BAC or Test Refusal

Vehicle Code 23578 VC is the California statute that allows a court to impose enhanced penalties in DUI cases involving an excessive BAC or a chemical test refusal.

A high BAC is a blood alcohol concentration of 0.15 or higher. A test refusal is when you refuse to take either:

• a breath test, or
• a urine test.

The language of 23578 VC reads:

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.

Additional penalties for having an excessive BAC or refusing a chemical test include the following:

California’s enhanced DUI penalties laws apply when you are convicted of either:

1. a violation of Vehicle Code 23152a VC or 23152b VC – driving under the influence, or
2. a violation of Vehicle Code 23153 VC – DUI causing injury.

Our California DUI attorneys will highlight the following in this article:

• 1. When is Vehicle Code 23578 imposed?
• 2. What are “enhanced” penalties?
• 3. When does VC 23578 apply?
• 4. Are these penalties always enforced?
• Additional Reading

1. When is Vehicle Code 23578 imposed?

A court may impose California’s laws on enhanced DUI penalties when:

1. you had an excessive blood alcohol content (BAC) as determined from the blood test or breath test, or
2. you refused a test by law enforcement.

Excessive Blood Alcohol

“Excessive blood alcohol,” under this statute, is a blood alcohol concentration of 0.15% or higher.¹

Note that California’s “legal limit” in DUI cases is a BAC of below .08%. If you are at or above .08%, you are guilty of per se DUI.

Test refusal

A “test refusal,” under this law, is when you refuse either a post-arrest:

• breath test or
• urine test.²

By driving in California, you implicitly agree to take a chemical test (either breath or urine test) if you get arrested. This is known as the implied consent law.

Note that you can lawfully refuse to take a preliminary alcohol screening (PAS) breath test before an arrest takes place.

2. What are “enhanced” penalties?

“Enhanced” penalties under VC 23578 mean harsher penalties than normally imposed for a DUI conviction.³ For example, a first-time DUI conviction in California may result in the following penalties:

1. A four-month suspended license, and/or
2. DUI classes for three months.

Under Vehicle Code 23578, these penalties may increase to:

• a driver’s license suspension for six months, and
• DUI classes for nine months.

Tougher penalties may also take the form of:

• additional time in county jail or state prison,
• steeper fines,
• community service,
• longer periods of misdemeanor (summary) probation, and/or
• more severe probation conditions.

It does not matter if you have no prior DUI offenses.

3. When does VC 23578 apply?

California’s enhanced DUI penalty laws apply when you are convicted of:

1. driving under the influence per Vehicle Code 23152 VC, or
2. DUI causing injury per Vehicle Code 23153.

You violate VC 23152 when you operate a motor vehicle:

• while “under the influence” of alcohol or
• with a BAC of .08 or higher.⁴

“Under the influence” means that your physical or mental abilities are impaired to the extent that you can no longer drive as well as a cautious sober person.⁵

You violate VC 23153 when you:

1. drive under the influence, and
2. injure another person as a result.⁶

You can be convicted of this crime if you are under the influence of:

• alcohol,
• drugs (known as DUID), or
• a combination of drugs or alcohol.

4. Are these penalties always enforced?

No. California courts are not required to impose tougher DUI penalties under VC 23578. The statute states that:

“the court shall consider [an excessive BAC and test refusal] as a special factor that may justify enhancing the penalties in sentencing…”⁷ (emphasis added).

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Privacy Implications of DUI Refusals and Forced Blood Alcohol Tests: What Judges Can Do – Criminal Justice.
• Shed Thou No Blood: The Forcible Removal of Blood Samples from Drunk Driving Suspects – California Law Review.
• Do I Really Have a Choice – Compulsory Blood Tests on Drunk Drivers and the Fourth Amendment – Western State University Law Review.
• Drunk Driving, Implied Consent, and Self-Incrimination – The Journal of the American Academy of Psychiatry and the Law.
• Taking Blood Evidence for Granted: McNeely and Birchfield’s Unintended Consequences – Stanford Law School.

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