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BAC Over .08

The California Vehicle Code makes it illegal to operate a motor vehicle while intoxicated. Like many states, California considers a blood alcohol concentration (BAC) of .08 or more at the time you are driving as intoxicated. This is a “per se” charge; the prosecutor need only show that you registered a BAC above the legal limit while driving to obtain a conviction for DUI in California.

California actually has two different DUI offenses. California Vehicle Code § 23152 (a) sets out a subjective standard. Under that section, it is unlawful to drive a vehicle while under the influence of alcohol or drugs. It is up to a jury to review the evidence and determine if you have behaved in a way that suggests you were intoxicated. This subjective standard can lead to disparate results across different juries.

The second type of DUI outlined in California Vehicle Code § 23152 (b) is a “per se” standard. If the jury finds that your BAC was above the legal limit you are found guilty. If the jury finds that you were not, you are acquitted. While this may sound straight-forward and fool-proof, there are a number of factors that can render a BAC test result as inadmissible or unreliable. An experienced California DUI attorney may be able to show a jury that a chemical test in your DUI case is unreliable and that you should be found not guilty. Hiring the right defense attorney can be critical to obtaining the best possible outcome.

What is DUI According to California Vehicle Code § 23152 (b)?

Under California Vehicle Code 23152 § (b), driving under the influence includes:

  • 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.
  • For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
  • In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

In other words, it is illegal to operate a vehicle with a BAC of .08 or more, and the court will assume that if a chemical test reflects a BAC above the legal limit then your BAC was also over the limit at any point during the 3 hours prior to the test. This presumption puts it on your defense attorney to prove that your BAC was not that high at the time you were behind the wheel.

Driving a Vehicle

While cases pursued under California Vehicle Code 23152 § (b) typically involved a chemical test and a presumption of intoxication, your prosecutor will also have to prove that you were driving a vehicle. This aspect of a DUI case can vary between states. Some states interpret the word vehicle so broadly it can include a skateboard or bicycle. Others limit it specifically to machines with an engine. In California, a vehicle must be motorized to fall under the DUI statute.

In some states, driving under the influence statutes are broad enough to include being in a vehicle that isn't moving. The standard in California is that there must be at least “slight movement” of the vehicle to obtain a conviction for DUI. That covers everything from driving down a highway to backing out of a parking spot.

The police don't need to directly witness you driving to obtain a conviction, either. California prosecutors can rely on circumstantial evidence that suggests you were driving even if no one saw you do so. Consider the following example:

You are driving home from a bar with a BAC above .08. You make a turn too wide and hit the back of an empty car parked on the side of the road. You get out of the car, and a moment later police arrive on the scene. Even though there are no witnesses to the accident and you were not in the car when the police arrive, they will likely have probable cause to arrest you for DUI. At trial, the prosecutor could use circumstantial evidence to convince the jury that you were driving.

The arresting officer could testify that your vehicle was just off of the road, with tire tracks leading from the street you turned off from. The state could also show that you were in the only person near your vehicle when the police arrived. The prosecutor could even call the owner of the vehicle you hit to testify that they had only parked it there a few minutes before you struck it. This would give the prosecutor ample evidence to show a jury that you were operating a vehicle while intoxicated.

Potential Penalties for a California DUI Conviction

A first, second, or third conviction for driving under the influence in California is typically treated as a misdemeanor. However, the consequences for a DUI conviction can go up dramatically with each prior DUI conviction on your record. A fourth or subsequent DUI will be charged as a felony under California law.

Not every prior conviction is made the same. When determining if your charge is a misdemeanor or a felony, the prosecutor in your case will only consider prior convictions that occurred in the last 10 years. In addition to any jail time or fines the court might impose, you might also be required to install an ignition interlock device if you were arrested in L.A. County.

DUI 1st Offense

A first time DUI conviction in California has a minimum jail sentence of 48 hours and a maximum sentence of 6 months. Despite the minimum jail time, a judge will typically order probation for first-time offenders. A conviction also carries a maximum fine of $1,000 and a six-month suspension of your driving privileges and a 12-week to nine-month DUI course. There are other conditions that may be imposed such as the Hospital and Morgue program and the Mad Mothers Against Drunk Driving program.

DUI 2nd Offense

A second DUI conviction carries a minimum sentence of 96 hours and a maximum sentence of one year in jail. Much like with a first offense, judges typically order probation for at least 36 months, but it is mandatory that they also order the minimum jail time of 96 hours. The jail time can be split up into two 48 hour periods. A conviction also carries a maximum fine of $1,000 as well as a two-year suspension of your driving privileges. The court will also require that you take a 18-month DUI course as a term of court probation.

DUI 3rd Offense

A third DUI conviction within 10 years is a misdemeanor that carries a jail sentence between 120 days and one year. While you will be required to serve some jail time, a court may shorten the minimum sentence to 30 days if you also agree to complete a 30-month program. The maximum fine for a 3rd DUI is $1,000. It also carries a four-year revocation of your driving privileges.

DUI 4th and Subsequent Offenses

A fourth or subsequent DUI conviction is a felony in California. You may also face a felony charge for a first, second, or third offense DUI if you caused serious injury or death during your most recent DUI arrest. A conviction carries a prison sentence of at least 16 months and at most four years. It also carries a maximum fine of $1,000 and a four-year revocation of your driver's license.

Potential Legal Defenses

Common defenses in DUI cases may include challenges to the traffic stop and challenges to the chemical test.

Challenges to the Traffic Stop

California police are held to a legal standard when initiating traffic stops. They can't just pull over any car they want. The officers must have at least "reasonable suspicion" that you have committed a DUI or traffic violation. If an officer stops you despite not having the reasonable suspicion to do so, any evidence collected during the traffic stop cannot be used against you.

Challenges to the Chemical Test

Your DUI defense attorney may also challenge the accuracy of the chemical test used against you in court. There are specific requirements for the collection of breath or blood tests. The officer that administers the test and the lab employee that analyzes it must both be certified. What's more, the state must be able to document the chain of custody for each sample. If the proper procedures aren't followed, your defense attorney may be able to have that chemical test excluded from your trial.

Finding the Right California DUI Defense Attorney

If you have been charged with a DUI in L.A. County, William Kroger Attorney at Law is ready to help. William Kroger is an experienced criminal defense attorney that has years of experience defending clients in L.A. County. If you would like to discuss the merits of your case and your prospects for acquittal, contact William Kroger Attorney at Law today to set up your free consultation.

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