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The Truth About DUIs in California


Can I get charged with a DUI even if my B.A.C. was less than .08?


A DUI is one of the most common criminal offenses committed each year.  Anyone who operates a vehicle (this could be a car, boat, golf cart, tractor, or other mode of transportation) while under the influence of alcohol or drug can be convicted of a DUI offense.   For the legal definition of a vehicle see Vehicle Code Section 670. 


Most DUI cases involve alcohol.  Those that concern drugs, however, not only include controlled substances, including marijuana, but also prescription medication.


Many people incorrectly believe that having a .08 blood alcohol content (B.A.C.) in their system, under Vehicle Code Section 23152(b), is the only way to get convicted of a DUI.  This is not necessarily true.  Any amount of alcohol in the blood can result in a DUI conviction.  So if you don’t handle alcohol well and take a drink that affects your ability to drive, even if your BAC is under .08, you may be convicted of a DUI pursuant to Vehicle Code Section 23152(a).


A Vehicle Code Section 23152(a) DUI becomes a concern when there is evidence that shows the driver was "under the influence."  The prosecution uses any "bad driving" to support its contention that the driver was under the influence.  Bad driving may be behavior that amounts to traffic violations such as speeding, driving too slowly, weaving in and out of traffic or within a lane, to name a few.  Field sobriety tests results and other outward signs of intoxication are also taken into consideration.  Nevertheless, valid reasons may exist to explain and negate the prosecution's characterization of bad driving, field sobriety test performance, and the police officer's observations.  This is when the right attorney can make all of the difference.


Commercial Drivers


The law as it relates to drivers with a license for commercial motor vehicles (Vehicle Code Section 15210) is more stringent.  Driving a vehicle for compensation (taxi, tow truck, UBER, bus, semi, etc.) subjects you to a higher standard of .04 BAC.  In addition, the consequences to your license are more severe.  Commercial drivers driving while intoxicated lose their license for one year.  A second conviction entails even more severe consequences.

What if I have a .08 BAC or above but am a “good” driver?


A traffic stop can occur as a result of a violation unrelated to driving:  a broken tail light or having items hanging from your rearview mirror.  "Good" driving while under the influence is a relative and debatable term.  That being said, even if you can drive in a manner similar to someone who hasn't had any alcohol, you can still get a DUI if your BAC chemical test (breath, blood or urine) result is .08 or above.  Under Vehicle Code Section 23152(b), as opposed to Vehicle Code Section 23152(a), it is presumed that a person is under the influence of alcohol if the chemical test result is taken within three hours of driving and yields a .08 or higher result.


Nevertheless, the right attorney will implement the appropriate approach.  For example, the calibration and maintenance records of the chemical testing equipment used by the police may be subpoenaed and analyzed for compliance.  Moreover, the handling and processing of a driver's blood sample may be re-examined and, in some instances, a separate independent laboratory testing be employed.  Sometimes, a rising blood alcohol level defense may be utilized.  A rising blood alcohol defense asserts that even though a test result of .08 BAC was obtained, the actual BAC of the driver was less than .08 at the time of the driving because of the delay in chemical testing, the biological composition of the driver, and other factors.  How high your BAC at the time of testing, timing of the test, whether you submitted to chemical/breath testing on the scene, your height and weight and other factors can either enhance or weaken this defense.  Finally, even if a driver's BAC is well over .08, depending on the circumstances, an argument for dismissal may exist based on the illegality or unconstitutionality of the traffic stop or police encounter.


Another related but perhaps not as well-known provision of the DUI provisions is that a person who is addicted to the use of any drug cannot drive a vehicle unless participating in an approved treatment program.  For more on this see Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.


So what happens if I am convicted?

First Time DUI

For a first time DUI the conviction can differ depending on where you were arrested, but typically, they include the following:


  • Jail and/or Sheriff's Work Program, Community Labor or Service

  • Fines

  • Three-month DUI offender program, not a live-in program, involving group sessions, individual interviews and sometimes AA/NA sessions.

  • Informal Probation 3-5 year

  • Installation of an ignition interlock device

  • Driver's license suspension for up to 6 months


Different counties and jurisdictions have slightly different ways of handling the sentencing.  However, typically it involves jail time of  48 hours, or Caltrans (Los Angeles), but significantly more Sheriff’s Work Program days in other counties (Bay Area).  Jail sentences can sometimes be served in a city-owned jail, depending on the court and whether you want to pay for accommodations in a city-owned jail facility.  At times, this requirement is satisfied if the individual was booked and incarcerated upon arrest. 


The base fine of $390-$1000 does not include court imposed costs and fees which increase the sum substantially.  After all of them added, the total fine will be approximately $1600-$1800 for a first offense.  A request to pay the fine in installments can be made.  In certain situations, it may also be possible for the judge to waive certain fees and fines, or convert them to additional Caltrans, Sheriff's Work Program, community service, or jail time.


The first time DUI offender program is not a live in program.  Each program provider is privately run but sanctioned by the court and the DMV.  The list of sanctioned providers changes, their fees and class schedules vary.  As such, it is important to research possible program providers before going to court.


Finally, informal probation means you are not assigned to a probation officer.  You promise the judge to do everything that is outlined in your sentence.  This seems simple enough, but too many times this is where something seemingly small can turn into something large.  You have to complete all the terms and conditions of your sentence and not pick up any new criminal case while on probation (for 3-5 years).  Otherwise, you could be subjected to the maximum jail time of up to six months and additional base fine of up to $1000, provided the original base fine ordered was less than $1000, plus penalties and assessments (again, think 3-4 times the base fine).




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