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What is Legal Blood Alcohol Level for DUI in California?

January 26, 2016

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This article answers the question What is the 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 or older non-commercial driver in California
Legal BAC for Commercial Drivers in California
Legal alcohol level for persons under 21 years of age
Arrest for a DUI with a blood alcohol level under .08%?

Legal Blood Alcohol Level for 21 years old and older non-commercial drivers 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 conclude 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).

Another Vehicle Code section creates several more presumptions. If the blood alcohol level is below .08%, but above .05%, the law creates no presumption toward guilt and no presumption towards innocence for a DUI case. But, if the blood alcohol level is below .05% alcohol by weight, the law creates a presumption that the person was not impaired at the time of driving. This makes is very difficult to prove a DUI with a BAC under .05%. The presumptions in CVC 23610 are rebuttable presumptions that can be overcome with good testimony from an expert witness.

The presumptions in CVC 23610 are designed to damage the driver’s ability to defend a DUI case in California. The presumption simply allows a conclusion that a diver at the time of driving was above .08% if the driver is tested within 3 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 good defense evidence and argument. For example, the scientific approach used in Los Angeles DUI defense can easily defeat the CVC 23610 presumption and show that the presumption is a legislative excuse to make the prosecutor’s job easier to get a conviction. Scientifically, there is no basis 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 the 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).

In September of 2016, the California Legislature passed the law equating drivers for hire to drivers who operate commercial vehicles. Uber, Lyft, and Taxi drivers will be subject to this law and can be found guilty of a DUI when their blood alcohol level is .04% or above. This is a significant change from the previous law that allowed an Uber (and other drivers for hire) driver to be at an alcohol level of .07% or less alcohol while transporting a passenger. This new law will take effect on July 1 0f 2018 and is codified in California Vehicle Code section 23152 (e) and 23153(e).

Legal alcohol level 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 a .05% DUI. Also, a minor can be cited for a .01% DUI under zero tolerance law.

For clarification, “underage DUI” is a DUI that only a minor can be charged with because the blood alcohol level for “underage DUI” is .05%. This offense is an infraction but requires a DUI program/class completion before the driver’s license can be issued and also, if convicted, will result in a one-year driver’s license suspension. An under-21 driver (“minor”) can still be accused of a .08% DUI when his or her blood alcohol level is above .08% – this carries harsher consequences and is no longer an infraction.

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 whereas as .05 BAC offense is an infraction. A conviction of .05 BAC minor DUI requires an alcohol education class as .01 BAC does not. The major similarity between these two offenses is the consequences on a 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 Los Angeles DUI attorney as soon as you get arrested so that we can contact the DMV on your behalf.

Can an adult driver be arrested for a DUI in Los Angeles with a blood alcohol level under .08%?

Yes, it can happen. It is also commonly prosecuted for Driving Under the Influence when the Blood Alcohol Level Concentration (BAC) is under .08%. But, as with any other prosecution, make sure that:

The facts that surround the arrest – such as an accident, bad driving, or the presence of other substances in the blood that can have the combined effect of intoxication.
Venue: some courts are simply harsher on prosecuting low-level alcohol DUI cases (such as Ventura and Orange County).
Priors: If a person has a prior DUI, he or she is it is more likely to be prosecuted for another DUI.
Lower BAC DUI cases are less likely to be prosecuted.

Even though California Vehicle Code Section 23610 provides presumptions of intoxication based on the level of alcohol in the bloodstream, the 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 or 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, that is, the person cannot be presumed impaired but also cannot be presumed not impaired. In Los Angeles DUI cases (and more so in Orange County DUI cases), the prosecutor will look at other facts to consider filing DUI charges.

For example, the defendant who tested .06% but was involved in a car accident, or has a prior DUI record, or did not do well on the field sobriety tests, or tested positive for some other substance such as marijuana, is more likely to be arrested and prosecuted for a Los Angeles DUI. On the other hand, a .05% BAC with no accident or bad driving or other factors is less likely to be prosecuted for a DUI in LA.