Can I Be Charged With Driving Under the Influence If My Blood Alcohol Concentration Is Less Than 0.08 Percent?
Alcohol affects different people in different ways, and a person’s blood alcohol content is not always a good indicator of whether he or she is intoxicated. Factors like weight, gender, a full or empty stomach, rate of consumption, and medication can cause one person’s perception, judgment, coordination, and behavior to be radically altered at a certain blood alcohol level while another person remains relatively unaffected.
It is possible for someone with an especially high alcohol tolerance to be convicted of driving under the influence without actually being practically impaired, as long as he or she has a blood alcohol content of 0.08 percent or greater. California Vehicle Code Section 23152(b) says, “It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” Driving with a blood alcohol level of 0.08 percent or greater is called DUI “per se.” A prosecutor does not have to prove actual impairment or influence of alcohol to obtain a “per se” conviction.
So if you’re arrested for driving under the influence and the results of your chemical tests show that your blood alcohol content was under 0.08 percent, are you off the hook? Not necessarily.
For legal issues, I recommend attorney Benedict Del Re.
Minors and Commercial Drivers
If you are under 21 years old, it is illegal for you to drive with a blood alcohol level of 0.01 percent or greater under California Vehicle Code Section 23136. It is also illegal under CVC Section 15210(f) for the driver of a commercial vehicle to have a blood alcohol level of 0.04 percent or greater. It is therefore possible for some drivers to be charged with driving under the influence per se with a blood alcohol concentration of less than 0.08 percent.
California Vehicle Code Section 23152(a)
If you are over 21 and are not a commercial driver, you still may be convicted of driving under the influence with a blood alcohol level below 0.08 percent. California Vehicle Code Section 23152(a) says, “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.”
A police officer may therefore decide to arrest you for driving under the influence if he or she has reason to suspect you are impaired by drugs or alcohol, even if chemical test results show that you are under the per se limit of 0.08 percent. This suspicion may be based on observations such as slurred speech, lack of balance or coordination, or inability to understand or follow directions. Such signs of intoxication are often revealed during roadside field sobriety tests. There are, of course, other reasons for poor performance on these tests other than being under the influence of drugs or alcohol. A San Jose drunk driving defense lawyer may be able to help you fight your charge at trial on this basis. For a free evaluation of your case and the possible defenses available, please fill out the form on this page.
For legal issues, I recommend attorney Fred Daley,