What is Legal Blood Alcohol Level for DUI in California?

January 26, 2016

legal alcohol level

This article gives an answer to the question What is Legal Blood Alcohol Level for DUI in California?  Click on the links below to go directly to your topic of interest.

Legal Blood Alcohol Level for 21 years old and older non-commercial driver in California

In California, the legal blood alcohol level for most drivers is .08% or less of alcohol in blood by weight.  California Vehicle Code section 23152(b) describes the meaning of legal blood alcohol level and also provides some other information relevant to BAC levels.

At trial the prosecutor can prove that a DUI driver is above the legal alcohol level by relying on a legal presumption. That legal presumption allows the factfinder to draw a conclusion that a DUI driver is above the legal blood alcohol level of .08% by weight. The presumption works when the blood alcohol level is measured within three hours of driving.

This legal presumption is codified in the statute and can be found in California Vehicle Code section 23152(b).

Moreover, another Vehicle Code section creates several more presumption.  If the blood alcohol level is below .08%, but above .05%, the law creates no presumption toward guilt and no presumption towards innocence.  But, if the blood alcohol level is below .05% of alcohol by weight, the law creates a presumption that the person was not impaired at the time of driving.  These presumptions are all rebuttable presumption and are found in California Vehicle Code section 23610.

The presumptions are very damaging to California drivers and the only one that truly matters is the presumption that an alcohol level at the time of driving is above .08% if the driver is tested within three hours of driving and tests above the legal blood alcohol level.  This presumption, just like the other presumptions, is rebuttable and can be overcome with a good defense evidence and argument.  For example, the scientific approach used in Los Angeles DUI defense can easily overcome the presumption and show that the presumption is a legislative excuse to make prosecutor’s job easier so that they can get convictions faster.  However, there is no basis in science to justify a conclusion that a person who is above the legal blood alcohol level must be above .08% three hours earlier.

Legal BAC for Commercial Drivers in California

If a driver operates a commercial vehicle, the legal alcohol level is reduced to .04% by weight of alcohol in blood and another rebuttable presumption operates to presume that the person was above the legal limit if within three hours of driving he was above .04% blood alcohol level.  The appropriate code section that addresses DUI while driving a commercial vehicle is California Vehicle Code section 23152(d).

Legal alcohol level for person under 21 years

A person who is under 21 years of age can be cited or arrested for a “Minor DUI” or “Underage DUI”, which is defined as .05% DUI. Also, a minor can be cited for .01% DUI under zero tolerance law.

For clarification, “underage DUI” is a DUI that only a minor can be charged with because of the blood alcohol level for “underage DUI” at least .05%.  This offense is an infraction but requires a class before the license can be reissued and also will result in one-year suspension. A minor can still be accused of a regular DUI when his or her blood alcohol level is above .08% with much harsher consequences.

The distinctions between 0.01% DUI and 0.05% DUI (the two different minor alcohol related violations) involve the level of the offense. A .01 BAC offense is a civil offense where as .05 BAC offense is an infraction. A conviction of .05 BAC minor DUI requires an alcohol education class where as .01 BAC does not. The major similarity between these two offenses is the consequences on driver’s license. A minor cited under either of the code sections will face a license revocation for 1 year by the DMV. A minor will be entitled to a hearing that you can request only within 10 days of the arrest. Please call an attorney as soon as you get arrested so that we can contact the DMV on your behalf.

Can a non minor be arrested for a DUI in Los Angeles with a blood alcohol level less than .08%?

Run Down: Yes you can. It is relatively common to be prosecuted for Driving Under the Influence when the Blood Alcohol Level Concentration (BAC) is less then .08%. Four things come to mind that can influence such a prosecution:

  1. facts surrounding the arrest – such as presence of accident, bad driving, or presence of other substances in blood stream,
  2. jurisdiction – some courts and prosecutors are just more serious on prosecuting low level DUI’s,
  3. prior record – it is more likely to be prosecuted for a DUI if there is a prior DUI conviction especially if the arrestee is on a DUI probation,
  4. lastly, the lower the BAC, the less likely it it to be prosecuted. Last point is not only common sense but it is also built into California Statutory Scheme.

Remember that the California Vehicle Code Section 23610 provides presumptions of intoxication based on level of alcohol in the blood stream. CVC 23610 presumptions can be used for jury instructions and often is a guide to the prosecution to determine how to proceed on any given facts. The presumptions are that a person was intoxicated if his/her BAC was .08% or more and not intoxicated when his/her BAC was .04% or less.

When the blood alcohol level is between those two values and equal to .05%, .06% or .07 % of alcohol, there is no presumption either way, but, the BAC and other facts can be considered in deciding if a person was intoxicated. So, if a defendant tested .06%, but was involved in a car accident or tested positive for some other substance such as marijuana, he is very likely to be arrested and prosecuted for a DUI almost anywhere. On the other hand, a .05% BAC with no accident or bad driving is very unlikely to be prosecuted for a DUI.
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