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Can You Still Be Arrested with BAC Below .08?

Nearly everyone is aware that the legal limit for driving under the influence of alcohol is .08% for drivers ages 21 and older. If the driver is under the age of 21, he or she cannot have ANY detectable amount of alcohol in their body under California’s Zero Tolerance Law.

BAC is a person's blood alcohol concentration, which simply refers to the amount of alcohol in the person’s system.

Here is where a lot of people get confused: Since every state abides by the same .08% limit for drivers 21 and over, it is a common misconception that the only way that someone can be charged with DUI is if their BAC is above .08%.

In reality, a driver can find themselves facing criminal charges even if their blood alcohol content was below .08%. This is explained under VC Sections 23152(a) and (b).

Under VC Section 23152(a), it is illegal for someone who is under the influence of alcohol to drive a vehicle, and under VC Section 23152(b), it is illegal for someone with a BAC of .08% to drive a vehicle.

So, if you’re arrested for DUI, and the prosecution can prove that your ability to drive safely was impaired, you can be convicted of DUI under VC Sec. 23152(a).

You Don’t Have to Be Over the Legal Limit

Under California law, it is illegal for a driver to drive under the influence of any substance, including a lawfully prescribed medication or an over-the-counter drug, such as allergy medication.

The next time you drive, remember that no matter what the substance may be, or how much is in your system, if it affects your ability to drive safely, you could be on the hook for DUI charges. In many cases, even having one drink is sufficient to charge a driver with DUI.

Generally, prosecutors try to prove that a driver was impaired by alcohol if their BAC was above .05%, regardless of the legal limit. Since it is illegal to drive impaired by any substance, someone who has a low alcohol tolerance may only need to have one drink to show signs of intoxication.

This is especially the case for individuals who don’t drink often, who have a low alcohol tolerance, who have a low body weight, who are already taking sedating medications, or who drank alcohol on an empty stomach.

A driver may be arrested for DUI if they:

  • Stumble while walking
  • Are slurring their words to the officer
  • Do not understand easy directions
  • Are combative with the officer
  • Have difficulty with their motor skills
  • Experience problems with regular driving
  • Fail the field sobriety tests

Even though the legal limit was not surpassed, the prosecution will try to prove that the accused was impaired. In these cases, a driver may be asked to plead to a wet reckless, a lesser criminal charge that counts as a “priorable offense” for future DUI charges.

If you were arrested for DUI but you only had a drink or two, don’t make the mistake of assuming that because your BAC was below .08% that you cannot be convicted of a DUI.

Work with an Orange County DUI attorney at the Law Offices of Virginia L. Landry, Inc. and let us help minimize the consequences of your DUI arrest. Call today!