More than 1000 Americans die every year due to drunk driving. With statistics as high as these, the state of California is keen on prosecuting drunk drivers. One of the common charges is the objective per se standard that punishes drivers who are arrested for driving with a blood-alcohol content of 0.08% or higher. With this standard, you'd be forgiven for assuming that the state cannot charge you with a DUI offense if your BAC was below 0.08%. As we'll see in this blog, you can still receive a DUI under various laws even if you have a BAC limit of less than 0.08%.

Understanding California DUI Laws

Drunk driving is illegal in California. When arrested for driving under the influence of alcohol, you are most likely to be charged under the per se law that requires you to have a BAC of at least 0.08%. However, it is not the only DUI law under which you could be charged.

The per se law is objective as the BAC limit can be verified using a chemical test and a breathalyzer. However, the police can still arrest you if you display signs of drunk driving. These indicators of drunk driving include:

  • Smelling of alcohol

  • Failing field sobriety tests

  • Erratic driving

Most people are aware of the objective law that requires you to have a BAC of at least 0.08% for the prosecution to file charges against you. What they miss, however, is that there are several other laws under which they can be charged for driving while intoxicated or under the influence.

Some of the laws under which you can be charged with a DUI include:

  1. Vehicle Code 23152 (a) Driving Under the Influence

Under VC 23152 (a), driving while under the influence of an alcoholic beverage is unlawful. This law does not require that you record a BAC of 0.08% or higher to be charged. These charges depend on other symptoms of drunk driving, such as:

  • Erratic driving

  • Smelling of alcohol

  • Slurred speech

  • Difficulty following instructions

  • Shaky hands

  • Lack of balance

  • Bloodshot eyes

  • Failing PAS and field sobriety tests

  • Admitting to drinking and driving

Since this charge is based on circumstantial evidence, you can fight it with legal defenses that challenge the evidence. For example, if you failed field sobriety tests, you can point out that these tests are not always a reliable indicator of intoxication.

The tests offered in field sobriety tests could have other non-alcohol-related causes that could affect the result of the tests. These circumstances include:

  • Nervousness

  • Fatigue

  • A medical condition

  • Uncomfortable clothes or shoes that made it hard to execute the field sobriety tests

  • Incorrect instructions from the law enforcement officer

A DUI under VC 23152 is a misdemeanor. The penalties, in this case, depend on your criminal history. IF convicted for a first offense in ten years, you will be jailed for up to six months. For a second offense, the sentence increases to a minimum of 96 hours and a maximum of one year in jail. For a third offense, the minimum penalty is 120 days, and the maximum is one year.

  1. California Zero Tolerance Laws VC 23136

Underage drinking is illegal in California. This law makes it illegal to drive with a detectable amount of alcohol in your system if you are under 21 years old. Therefore, whether you have a BAC of 0.08% or not, you can still be charged with a DUI in California for violating zero-tolerance laws.

In addition, the prosecution does not consider your level of impairment as a mitigating factor in your case.

Violating zero-tolerance laws in California is considered a civil offense that attracts a license suspension. Those who violate these laws without a license at the time of the offense must wait one year before receiving a driver’s license.

  1. Vehicle Code 23140 Underage DUI (with a BAC of 0.05%)

If you are under 21 and drive with a BAC of 0.05% or higher, you could be charged with underage DUI with a BAC of 0.05%. This offense is an infraction that results in the suspension of your driver’s license, $1000 in fines, and mandatory alcohol education for a minimum of three months for offenders aged 18 or older.

  1. Vehicle Code 23152 (d) Driving with a BAC of 0.04% or Higher (Commercial DUI)

When you drive while intoxicated with a commercial driver’s license, you will be charged under California’s commercial DUI laws. Commercial drivers are prohibited from driving with a BAC of 0.04% or higher. Commercial vehicles include:

  • Large trucks

  • Double trailers

  • A school bus

  • A tank vehicle

  • Some farm vehicles

  • Vehicles that carry a hazardous substance

The penalties for commercial DUI vary depending on your criminal history and the facts of the current offense.

The penalties for a simple DUI (no injury or death) include six months in jail, up to $1000 in fines, and suspension of your commercial driver's license for at least a year. Committing a second offense violating commercial DUI laws results in a lifetime suspension of your commercial driver's license.

If you injured someone during the offense, you could be charged with the offense as a misdemeanor or felony. The misdemeanor charge attracts a jail sentence of up to a year and up to $5000 in fines, in addition to victim restitution, one to three years’ license suspension, and attending a court-approved alcohol education program.

When charged with a felony, you earn a strike on your record. The more strikes you have, the steeper the penalties for other felony offenses. The specific incarceration term depends on the circumstances of the offense, for example, the extent of injury the victims suffer. Your license could also be revoked for five years.

  1. Vehicle Code 23152 (e) DUI with a BAC of 0.04% or Higher by Uber, Lyft, Limo, or Taxi Drivers

Like commercial drivers, rideshare drivers are prohibited from driving with a BAC of 0.04% or higher while carrying a paying passenger. Driving a paying passenger while intoxicated became an offense starting July 1, 2018. Before the implementation of this law, the legal limit for ridesharing drivers was 0.08%.

If you are a taxi, Lyft, or Uber driver with a BAC of below 0.04%, you could still be charged with driving under the influence for having alcohol in your system.

When charged under VC 23152 (e), the sentence could be six months in jail and up to $1000 in fines. You could also lose your license, thus affecting your future job prospects.

  1. DUI Drugs

Unlike driving while intoxicated on an alcoholic beverage, a DUI of drugs does not require proof that you had a BAC of 0.08%. you can be charged with DUI of drugs if you drove:

  • While under the influence of drugs

  • While under the influence of both drugs and alcohol

You are guilty of the offense if the prosecution can prove that your driving capacity was impacted by taking a drug (any substance, legal or not, that affects the brain, nervous system, and muscular system and could impair your driving capacity).

Some of the drugs that could result in impairment when driving include:

  • Controlled substances such as cocaine

  • Legal drugs like marijuana

  • Prescription medications

  • Over-the-counter medications

Since the concentration of these drugs cannot be measured similarly to alcohol, an arrest for a DUID is highly subjective. The arresting officer looks at factors such as:

  • Your performance on PAS and field sobriety tests (a PAS test is given to eliminate intoxication by alcohol)

  • Physical symptoms of intoxication

  • Drugs or drug paraphernalia visible in the car

What to Do When Arrested for Drunk Driving

When you record a BAC lower than the legal limit, it’s easy to think that you will be let off the hook. However, depending on the circumstances, you could still be charged and convicted for a DUI offense under various laws.

Therefore, when you are arrested, you should take this as a sign to start preparing to defend yourself against any charges that the prosecution files against you.

Depending on the seriousness of the offense, you will be released within a few hours with a notice to attend any court hearings, or you might have to post bail to secure your release.

Once released, find a skilled DUI defense attorney to review your case. An attorney will help you navigate the multilayered DUI laws in California. For instance, they will help you schedule a DMV hearing, gather the necessary evidence, and prepare a defense against your charges.

The DMV is often involved in most DUI cases by suspending your license. The DMV's suspension differs from the suspension or revocation that arises from a criminal conviction.

When you commit an offense violating the DMV's regulations for drivers, you lose your driving privileges for a given time. Luckily, you can challenge the DMV suspension by scheduling a DMV hearing within ten days of your arrest.

Working with an attorney also helps clarify the potential charges the prosecution could bring against you. In California's case of DUI laws, you cannot be charged under more than one DUI law for the same incident. However, in the case of zero-tolerance laws, you can be charged for violating more than one DUI law.

You can easily miss such distinctions when working independently on your case, which could lead to unfavorable outcomes.

Fighting DUI Charges

When the police suspect you are driving under the influence of alcohol, drugs, or a combination, they are likely to slap as many DUI charges on you as possible to find one that sticks. This means that you must be ready to fight the charges brought against you, whether you blew below the legal limit or not.

One of the first steps in defending yourself is working closely with an experienced DUI attorney to build a solid defense strategy. This strategy could include various combinations of the following legal defenses depending on the circumstances of your case:

  1. Illegal Stop

Law enforcement officials must have reasonable cause to make a traffic stop or arrest you for an offense. For instance, the police must reasonably suspect that you were violating the law. The police must also be able to demonstrate the reasons for the stop.

Some of the common reasons that police cite as probable cause for a traffic stop include:

  • Erratic driving

  • The driver commits a traffic violation

  • The driver is coming from an area with multiple bars

However, the officers do not need to demonstrate reasonable suspicion for traffic stops made at designated DUI sobriety checkpoints. These sobriety checkpoints must also meet some legal requirements:

  • Supervising officers are responsible for all operational decisions

  • The officers must follow uniform criteria when stopping motorists

  • The time and duration of the checkpoint must demonstrate good judgment

  • The checkpoint must sufficiently reflect its official nature

  • The checkpoint should be in a reasonable location

  • Drivers should be detained at the checkpoint for a minimal amount

  • The officers should announce roadblocks in advance

  • Officers must take adequate safety precautions

Once the officers stop you, either because you were acting erratically on the road or committing a crime, they must have reasonable cause before initiating a DUI investigation. Reasonable suspicion to detain you for a DUI investigation includes:

  • The officer notices drug paraphernalia in the car

  • There’s an open bottle of alcohol in the vehicle

  • You displayed other physical symptoms similar to those of a DUI

  • The police smell an alcoholic odor on you

Once they conduct a DUI investigation, the police must have probable cause to arrest you. This includes a high BAC reading or physical and mental impairment that could endanger other road users if they are allowed to continue driving.

  1. Unreliable Field Sobriety Tests

Despite their popularity in evaluating whether a person is under the influence, field sobriety tests are not always accurate. These tests require accuracy to be administered and scored to ensure that they produce the most accurate results.

However, few law enforcement officers precisely administer and score them, meaning that the results from most field sobriety tests are an unreliable indicator of driving under the influence.

In addition to the shortcomings of inaccurate administration, other environmental factors could contribute to poor performance in these tests. Some of these factors include:

  • Anxiety

  • Poor weather conditions

  • Poor lighting

  • Uneven surface

  • Uncomfortable clothing and footwear

  1. You Were Not Driving

A DUI is a driving crime. Therefore, if you were not driving at the time of the arrest, you can use the “no driving” defense to fight the charges. This defense works well when the arresting officer did not see you driving a vehicle, and no one else witnessed you driving a vehicle.

Under the law, driving is defined as moving a vehicle of your own volition over a distance, which can be as low as a few inches. In instances where the police do not have evidence of you driving, you can challenge their circumstantial evidence to fight the charges.

  1. Bad Driving

Bad driving can often be confused with driving under the influence. The defense of bad driving works well for charges not based on a BAC level. When charged for driving under the influence where your BAC level was below the legal limit, you can argue that while you demonstrated a driving pattern consistent with DUI, you were not drunk driving.

Other causes of bad driving include inattention, fatigue, and distracted driving. For example, you could have been attempting to pick something from the floor of the car leading you to move into another lane.

  1. You were not Under the Influence

The signs of intoxication that police officers look at when arresting other non-alcohol-related problems could cause you. Symptoms such as red eyes, a flushed face, slurred speech, and a smell of alcohol in your breath could all be caused by other conditions such as fatigue, allergies, or illness.

Police officers are also more inclined to test the physical signs of intoxication rather than mental alertness when driving. When using the defense of being mentally alert, it makes sense to have other symptoms that show physical impairment.

An alcoholic odor in your breath could also come from other medical conditions such as diets, diabetes, or fasting. These conditions could result in the release of ketones from the body, which mimic an alcoholic odor.

When the body releases ketones, it's also possible for you to display symptoms typically associated with drunk driving, such as poor coordination and confusion.

Find a Los Angeles DUI Defense Attorney Near Me

Having a BAC lower than the legal limit does not eliminate the possibility of a DUI conviction in California. The prosecution could still file charges against you for driving under the influence, underage driving, driving under the influence of drugs, or DUI while driving a commercial vehicle. If you were arrested for a DUI offense, one of the first steps should be to connect with a DUI defense attorney to learn more about the charges you could be facing and the possible ways to fight these charges. The LA Criminal Defense Law Firm dedicates itself to providing solid defense to clients facing DUI charges in Los Angeles. You can schedule a free consultation with our attorneys at 310-935-1675.