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Why you can still get a DUI with less than .08% BAC

Law Office Charlotte C Lin DUIMost people arrested for DUI’s are charged with two different counts: Vehicle Code § 23152(a) and Vehicle Code § 23152(b). Generically speaking, they are both “DUI’s”. If you are not familiar with the new VC § 23152, please read the recently updated Vehicle Code § 23152. Also note, these are the usual DUI charges when there wasn’t an injury. Let me explain the “b” count first, as it is, in my opinion, a little more straightforward.

VC § 23152. (b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

This is the “per se” count. A driver is guilty of this offense (the “b”) count if he or she is shown to have driven a vehicle with BAC greater or equal to .08%. Generally speaking, this  basically says if you have .08% or greater BAC while driving, you are guilty of driving under the influence. It doesn’t matter if you weren’t “drunk” or weren’t “impaired”. It doesn’t matter if you weren’t actually influenced by alcohol (if you are blessed with a high tolerance). It doesn’t matter if you “felt fine” or felt sober. If you are shown to have .08% BAC or greater during driving, you are guilty of driving under the influence. So unfortunately, even if you have extremely high tolerance and look, feel, and smell sober, it’s still a DUI. Even if you passed your field sobriety test with flying colors, a .08% or higher will still make the “b” count. So, why did you even have to do a field sobriety test in the first place? Seems like all they needed was the BAC test? Ah, read the next part…

VC 23152.  (a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.

This is the “impairment” count. This one may be a bit subjective.

Notice  there is no number for count “a”.  There is no BAC % required under count “a”. This means you can still have less than .08% BAC and still be found guilty of the “a” count for driving under the influence. I highlight this because a very, very common misconception is that if you have less than .08% BAC you will not get a DUI. This is not necessarily true! It is possible that you can still be charged (and be found guilty) of driving under the influence under VC § 23152(a). Under the “a” count, prosecutors can prove under the influence by showing driving patterns that suggests impairment, and symptoms of the driver such as alcohol smell, reddish or watery eyes, slurred speech, etc. This is also where the field sobriety test comes in. If you have low tolerance, you understand that you can still be below .08% and still do poorly on field sobriety tests. Also, the  prosecutor can still introduce your BAC results as evidence to show alcohol impairment (and the result doesn’t have to be .08% or more, remember).

Most drivers are charged with both when arrested for a DUI. This is a safeguard for prosecutors, I believe. This means that if  you were actually driving impaired, but your BAC was less than .08%, the prosecutor can still pursue the DUI “a” count. Or, conversely, if you happen to have a very high tolerance, but was driving “fine”, and you have .08% or higher, the prosecutors can still pursue the DUI “b” count. This is important to understand, because having good performance on the field sobriety test does not necessarily shield one from a DUI. And also, remember that having less than .08% BAC doesn’t mean you won’t get a DUI!

If you are driving a commercial vehicle, you can also be charged with  VC § 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, as defined in Section 15210. Under this count, the BAC level is lowered to .04%. Also, note that this is a “per se” offense too,  like count “b” explained earlier. Therefore, it doesn’t matter if you were sober, or wasn’t actually impaired. In this scenario, what matters is the number.

Read general discussion of punishment and penalties for a first offense DUI, and for DMV proceedings.




About Charlotte Lin

Charlotte is a trusted lawyer by day, and legal ninja by night. In her spare time she enjoys slashing tickets with nunchucks.