It may seem wrong to say, but it is not illegal to drink and drive. Perhaps a better way to word this is that it is not illegal to drive after drinking alcohol. While it is illegal to drive "under the influence" of alcohol, there is nothing illegal about driving after you have consumed alcohol, depending on the amount in your system and whether it is influencing your ability to safely operate a vehicle.
California law prohibits driving under the influence of alcohol or drugs. California Vehicle Code § 23152 (2014) specifically states:
It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.
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.
It is unlawful for a person who is addicted to the use of any drug to drive a vehicle.
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…
It is unlawful for a person who is under the influence of any drug to drive a vehicle.
It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.
§ 23152 is very specific when it comes to what acts are considered unlawful in terms of driving under the influence, or DUI. It is important to note that "driving after drinking" is not prohibited. It is only unlawful for a person to drive a vehicle if he or she is "under the influence" of alcohol and/or drugs, or if he or she has ablood alcohol concentration (BAC) of .08% or greater, or .04% or greater for commercial drivers.
Driving "Under the Influence" Defined
How does one determine whether a driver is "under the influence" of alcohol or drugs? A driver may be considered under the influence if his or her normal abilities are impaired to such an extent that it affects his or her ability to safely operate a vehicle. Alcohol and drugs are known to impair judgment, affect vision, delay reaction time and to have an impact on motor skills. Although this can be true, their impact on an individual person will vary depending on the amount of alcohol, the type and amount of drug and a number of other factors, such as weight, metabolism, diet and health conditions. The presence of alcohol alone is not necessarily enough to prove intoxication.
Field sobriety tests and an officer's observations of a driver's behavior and mannerisms may be used as evidence to prove that a driver has impaired abilities. These can be challenged, however, by cross-examining the arresting officer to find holes in his or her evaluation of a driver's impairment. Video and audio recordings of field sobriety tests and an initial police stop may also prove valuable in showing that a driver's abilities were not impaired.
Another key issue in any DUI case is what a driver's blood alcohol concentration (BAC) was or whether his or her abilities were impaired at the time he or she was actually driving. This can be a complex issue because blood alcohol levels tend to change, rising and then falling after alcohol is consumed. The timing of abreath test or blood test in comparison to a DUI stop and arrest may actually influence the strength of a possible defense against drunk driving charges – if it can be proven that a driver's BAC was below the legal limit while he or she was actually operating the vehicle. A blood test administered several hours after an arrest, for example, may yield inaccurate results in terms of a driver's BAC when he or she was behind the wheel.
When you know that it is not illegal to drive after drinking, you can be better prepared to challenge DUI charges. You can recognize that you are not necessarily guilty of anything. The best way to find out how to approach your case is by involving an attorney as early in the process as possible. At the Law Offices of Virginia L. Landry, we represent drivers in and around Orange County in the face of DUI charges, ranging from first-time DUI arrests all the way tofelony DUI for
accidents and multiple offenders. Call our offices today to see how we can help you.