Less Than .08% BAC & Still Arrested for a California DUI?!

If the legal limit for a California DUI is .08, can I still get arrested for a California DUI - driving under the influence of alcohol - when I blew only .05, .06 or .07?

Yes.

A California drunk driving charge depends on the facts & circumstances.

Can you remember going to a party, someone got drunk and started hitting on your spouse?
And when teased the next day that person swore it was only two drinks?

Alcohol affects different Californians in different ways. Some people may experience mild effects after two or three drinks; some people may be impaired after one.

California's .08 law exists because of federal funding pressure and because that law states that a .08 blood-alcohol level will impair anyone. But you may have a lower concentration of alcohol in your blood and still be allegedly impaired according to California DUI law.

At a recent party, a friend brought my portable breath test machine and began testing people. Few at that party reached a .08. One person claimed she felt too buzzed to drive by the time she reached .07. It doesn’t necessarily take a lot of alcohol to get impaired. Each person is different and so is her or his physiology.

A California DUI is one the most defended criminal cases by California criminal defense lawyers in California courts. The accused has a lot to lose if convicted. DUIs are extremely costly in terms of fines, court-imposed fees, insurance rates, ignition interlock devices, vehicle impounds, public work service, alcohol programs, and jail.

One of the biggest reasons people hire California DUI criminal defense attorneys to fight their California Drunk Driving charges is fear of losing their driver’s license. Our culture makes daily living difficult without personal transportation, particularly in rural areas.

California DUI police officers don’t always just depend just on numbers from a breath sample to decide if someone is impaired. A skilled and honest California DUI officer often knows, before doing a breath test, if the driver is likely to be arrested for a California DUI.

Unsteady gait, distinctly slurred speech, misunderstanding comprehensible directions, unexplained difficulty with basic motor skills and the manner of driving are possible characteristics that may say more about someone’s possible impairment than numbers on a machine.

California DUI laws and issues are extremely complex.

California Drunk Driving Criminal Defense Lawyers often have to deal with prosecution experts who try to claim that people can be impaired at .05.

If you are under .05, there is a jury instruction (below) that you are presumed not to be under the influence of alcohol.

If you are a commercial driver, it is unlawful to drive a commercial vehicle with a .04 BAC.

If you are an non-commercial adult driver who was charged with a California DUI at less than .08, you’ve learned the hard way that a small amount of alcohol can cause possible impairment, at least in the opinion of some California DUI police officer.

It gets very complicated for a California DUI criminal defense lawyer who must deal with many different jury instructions in California DUI cases.

e.g. California Criminal Jury Instruction Number
2110. Driving Under the Influence (Veh. Code, § 23152(a))

A person is under the influence if, as a result of (drinking [or
consuming] an alcoholic beverage/ [and/or] taking a drug), his or
her mental or physical abilities are so impaired that he or she is
no longer able to drive a vehicle with the caution of a sober
person, using ordinary care, under similar circumstances.

The manner in which a person drives is not enough by itself to
establish whether the person is or is not under the influence of (an
alcoholic beverage/ [or] a drug) [or under the combined influence
of an alcoholic beverage and a drug]. However, it is a factor to be
considered, in light of all the surrounding circumstances, in
deciding whether the person was under the influence.

If the People have proved beyond a reasonable doubt that a
sample of the defendant’s (blood/breath) was taken within three
hours of the defendant’s [alleged] driving and that a chemical
analysis of the sample showed a blood alcohol level of 0.08 percent
or more, you may, but are not required to, conclude that the
defendant’s blood alcohol level was 0.08 percent or more at the
time of the alleged offense.

In evaluating any test results in this case, you may consider
whether or not the person administering the test or the agency
maintaining the testing device followed the regulations of the
California Department of Health Services.

The above paragraph that begins with “If the People have proved beyond
a reasonable doubt that the defendant’s blood alcohol level was 0.08 percent”
explains a rebuttable presumption created by statute. (See Veh. Code,
§ 23610; Evid. Code, §§ 600–607.) The California Supreme Court has held
that a jury instruction phrased as a rebuttable presumption in a criminal case
creates an unconstitutional mandatory presumption. (People v. Roder (1983)
33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501, 658 P.2d 1302].) In accordance
with Roder, the instructions have been written as permissive inferences. In
addition, it is only appropriate to instruct the jury on a permissive inference
if there is no evidence to contradict the inference. (Evid. Code, § 604.) If
any evidence has been introduced to support the opposite factual finding,
then the jury “shall determine the existence or nonexistence of the presumed
fact from the evidence and without regard to the presumption.” (Ibid.)
Therefore, the court must not give the bracketed paragraph that begins with
“If the People have proved beyond a reasonable doubt that the defendant’s
blood alcohol level was 0.08 percent” if there is no substantial evidence that
the defendant’s blood alcohol level was at or above 0.08 percent at the time
of the test. In addition, if the test falls within the range in which no
presumption applies, 0.05 percent to just below 0.08 percent, do not give this
bracketed sentence. (People v. Wood (1989) 207 Cal.App.3d Supp. 11, 15
[255 Cal.Rptr. 537].) The court should also consider whether there is
sufficient evidence to establish that the test result exceeds the margin of error
before giving this instruction for test results of 0.08 percent. (Compare
People v. Campos (1982) 138 Cal.App.3d Supp. 1, 4–5 [188 Cal.Rptr. 366],
with People v. Randolph (1989) 213 Cal.App.3d Supp. 1, 11 [262 Cal.Rptr.
378].)

The statute also creates a rebuttable presumption that the defendant was not
under the influence if his or her blood alcohol level was less than 0.05
percent. (People v. Gallardo (1994) 22 Cal.App.4th 489, 496 [27 Cal.Rptr.2d
502].) Depending on the facts of the case, the defendant may be entitled to a
pinpoint instruction on this presumption. It is not error to refuse an
instruction on this presumption if the prosecution’s theory is that the
defendant was under the combined influence of drugs and alcohol. (People v.
Andersen (1994) 26 Cal.App.4th 1241, 1250 [32 Cal.Rptr.2d 442].)

If the evidence demonstrates that the person administering the test or agency
maintaining the testing device failed to follow the title 17 regulations, give
the bracketed sentence that begins with “In evaluating any test results in this
case.” (People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190]
[failure to follow regulations in administering breath test goes to weight, not
admissibility, of the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417
[121 Cal.Rptr.2d 854, 49 P.3d 203] [same].)

Obviously, the California DUI breath test machine's numbers also
come into play. There are a plethora of issues and problems
relating to the test's proper administration, collection, maintenance, etc.

Just because there's a number does not mean that number is accurate
or reliable!

That's why smart people rely on California DUI criminal defense lawyers for help.