DUI Legal Limit

Most drivers know that the legal BAC limit for DUI offenses in California is 0.08 percent for most adults. This 0.08 percent limit has been adopted by all 50 states. However, there may be instances where a driver can be charged with DUI even where his or her BAC is under the 0.08 percent threshold or where there is no BAC reading.

There are a number of circumstances where a driver who has a BAC under 0.08 percent can still be charged with a DUI offense. While these drivers may not be charged with driving with a BAC of 0.08 percent or higher in violation of California Vehicle Code Section 23152(b) VC, there are other crimes with which they may be charged.

Drivers under the age of 21 face a “zero tolerance” policy. These underage drivers can have their driving privileges suspended for an entire year if they have a BAC of 0.01 percent or higher. Unlike most adult drivers, underage drivers must test on an officer’s portable preliminary alcohol sensor (“PAS”) device upon request. This is also true for drivers who are on probation for a DUI offense and cannot drive with any measurable amount of alcohol in their system.

There may also be circumstances where a driver is charged with a DUI offense even where he or she has a BAC of .06 percent or 0.07 percent. The prosecution may be able to demonstrate that a driver’s BAC was above 0.08 percent at the time of driving but tested lower due to a “falling blood alcohol” effect. The prosecution may use a toxicology expert to calculate and explain to a judge or jury what a driver’s BAC would have been at the time of driving based on a number of different factors. Even if DUI charges are filed, the DMV will not issue an administrative license suspension for drivers with BAC results under 0.08 percent. However, the driver may have his or her driving privileges suspended if convicted in court of DUI.

Typically, a prosecutor will charge defendants with two DUI counts; driving under the influence in violation of California Vehicle Code Section 23152(a) VC and driving with a BAC of 0.08 percent or higher pursuant to California Vehicle Code Section 23152(b) VC. This means that even if the prosecution is unable to effectively show that the defendant’s BAC was above the legal limit, they still may pursue DUI charges. To do this, the People would have to present evidence that the defendant was actually under the influence of alcohol, such as his or her driving conduct, performance on the field sobriety tests or the officer’s observation of physical symptoms of intoxication.

In order to show that a driver had a BAC of 0.08 or higher, the prosecution will rely on the results of chemical testing. Drivers in California are given the option of taking either a breath or blood test if lawfully arrested for DUI. The results of the breath test are known immediately, however the blood sample must be sent out for testing and the results are typically not known for several weeks.

The prosecution may use a toxicology expert to explain how the defendant’s BAC at the time of testing was indicative of a BAC of 0.08 percent or higher at the time of driving. The defense can present its own expert testimony to challenge the BAC results.

If you have been charged with DUI, it is critical you meet with a knowledgeable DUI attorney immediately. Michael Kraut is a former Deputy District Attorney with over 14 years of prosecutorial experience who is widely regarded as a top-rated DUI litigator who fights hard on behalf of his clients.

For more information about the DUI legal limit, and to schedule your free consultation, contact Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.