Fighting BAC Results in California DUI Cases

February 23, 2016

Fighting BAC Results in California DUI Cases

In this article, DUI Defense Lawyer discusses how to fight BAC Results in California DUI Cases.  Click on the links below to go directly to your topic of interest.

The Importance of BAC Results in Los Angeles DUI Cases      

Los Angeles DUI prosecutors will look at several factors to decides how to prosecute a DUI in Los Angeles.

First, Los Angeles DUI prosecutors will check if there was an accident prior to Los Angeles DUI arrest.  Any accident will make a DUI seems much more serious in the eyes of Los Angeles County Judge and Los Angeles DUI prosecutors.

Second, Los Angeles DUI prosecutors will check the criminal record of the person arrested for a DUI in Los Angeles.  Specifically, Los Angeles DUI prosecutors will check to see how many alcohol and substance abuse arrests and convictions does the person suspected of a DUI in Los Angeles has.  More specifically, Los Angeles DUI prosecutors will check to see how many DUI arrests and prosecutions a person suspected of a DUI will have in his criminal record.  The more arrests and DUI arrests this driver has, the more serious the charges and the potential punishment, in the eyes of a Los Angeles DUI prosecutor, should be.  Presence of previous criminal record of arrest and prosecution (RAP) will also make any filing of a criminal case in Los Angeles more likely.

Third, Los Angeles DUI prosecutors will look at the DUI driver’s blood alcohol level.  The higher the DUI driver’s blood alcohol level, the harder it is to defend the DUI and the more punishment the prosecution will want for a Los Angeles DUI driver.

Generally speaking, often DUI does not get filed in Los Angeles where the blood alcohol level is below .08%.  This level of alcohol is based on previous scientific research showing that a person cannot drive as carefully as a sober driver when his blood alcohol level is at .08% or above.  Scientific research also shows that the higher the DUI driver’s blood alcohol level, the more dangerous the driver is to the public and to himself.

If a DUI driver’s blood alcohol level is above .15% BAC, the DUI is considered a much more serious offense.  If a DUI driver’s blood alcohol level is above .20% BAC, the DUI is considered a very dangerous and reckless conduct.  To match this concept , the legislature created statutes to punish more severelly drivers with higher blood alcohol levels.  For example, at .15 % BAC DUI drivers often ordered to participation in Hospital and Morgue Programs (HAMM) and/or ordered to attend Mother Against Drunk Driving (MADD) Victim Impact Programs (VIP).  Above .20% BAC, the court has to order a 9 months alcohol program even on a first offense.

The DUI law in California developed over the years.  At first, there was no specific DUI driver’s alcohol level at which you could not drive.  As scientists started to understand the effects of alcohol, California adopted laws first to set legal DUI driver’s blood alcohol level below .15% BAC, then lowered it to .10% BAC, and eventually reducing it to .08% BAC (the current legal illegal level of aclohol).

But even now many forensic experts on DUI intoxication think that a person who consumes even one drink of alcohol will have much slower reaction time and because of that, he will be a more dangerous driver.  It will not be surprising if in the next few years, California will make it illegal to drive with a blood alcohol level of .05% for all drivers.  Currently, this standard is applied to minors only.

Older published cases from California use mg/dL (milligrams per deciliter) of alcohol in blood instead of using percent of alcohol in a blood.  Also many forensic texts and literature uses grams (or milligrams) per deciliter.   The conversion is simple: the DUI driver’s blood alcohol level of .08% of alcohol in blood converts to 80 mg/dL or .08 g/dL ( or .08g/100 ml).  The percent alcohol concentration is measured by weight.  Therefore, a .08% means that there would be 8 grams of pure alcohol by weight for every 1 litter of blood.  Because human body contains about 5 liters of blood, at .08 % BAC, there is approximatelly 4 grams of alcohol in a human body.

The legislature made another scientific blunder: they decided that if a person’s breath contains .08 grams per 210 litters of breath, it is equavalent to .08% of alcohol by weight in blood.  Because most breathalyzers use only 1.5 litters of breath,

MATH: since 1 litter weights 1000 grams, then 1 deciliter weighs 100 grams.  .08% of 100 grams is .8 grams, equal to 80 mg.

BAC level lower than .08% in DUI cases

BAC ResultLegal alcohol limit for purpose of drunk driving in California is .08% alcohol by weight.  However, a prosecution for most DUI cases in Los Angeles involves a prosecution for two separate crimes: a California Vehicle Code Sections 23152(a) and 23152(b).

  • CVC 23152(a) requires impairment as evidence of DUI.
  • CVC 23152(b) requires blood alcohol concentration above the legal alcohol limit of 0.08 percent.

An attorney specializing in DUI defense will be preparing to defend against both charges.  The legal alcohol limit charge is defended by questioning the reliability of the measuring equipment, checking for a contamination of breath or blood sample, or arguing that measurment of BAC is inaccurate because during the absorption stage the acohol concentration is blood is overestimated by at least 40%.  This means that a person who is .06% BAC in the absorption stage will measure .08 BAC.  This has been documented in several articles and means that if you are tested in the absorption rate, you are innocent of the DUI, despite what the police or the Los Angeles DUI prosecutor say.

The impairment count is defended by questioning the observation of the arresting officer.  Yet, it is true that almost any evidence of alcohol presence in the human body can be used to prosecute a CVC 23152(a) because many governmental experts will testify that “most if not all people are impaired at a blood alcohol levels of .05 percent or more”.  However, to get a conviction for CVC 23152(a), the prosecutor has to present evidence that “alcohol so far affected the nervous system, the brain, or the muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinary prudent and cautioni person in full possession of his faculties”.

The first California laws that made DUI a crime were the impairment statutes.  Only later, California made it illegal to drive with a blood alcohol level above some level.  This law was put in California Vehicle Cod 23152 (b) to address a problem of people with a high blood alcohol level avoiding DUI convictions because of their higher tollerance for alcohol intoxication.   Back then it would be heard to prosecute a DUI driver whos blood alcohol level was .09% BAC but who refused to submit to the field sobriety test and was not seen driving bad unless there was law that made any person with a BAC of .08 % automatically guilty.

Yet, many DUI prosecutors file DUI cases when the blood alcohol level is below the legal alcohol limit of .08% BAC.

For example, it is not uncommon for the Orange County District Attorney Office to prosecute DUI cases where the alcohol level is .07 % or even lower.  Below .08 BAC DUIs prosecutions by the Los Angeles District Attorney’s office can also occur in some areas of the greater Los Angeles.  For example, recently DUI attorney in our office successfully defended a .07 DUI in Torrance courthouse and a .06 DUI in Pomona courthouse.  Both cases were filed by the Los Angeles County District attorney’s office.

If a case of lower alcohol level goes to trial, the prosecutor will likely have an expert testify that in his or her opinion, the driver was impaired at X alcohol level (with x being anywhere between .05 to .07). Alternatively, the prosecutor might use a change in blood alcohol level from the time of driving to the time of arrest to argue that at the time of driving the driver was above the legal limit.

The opinion that “everyone is impaired at .08 BAC” simply has little basis in science, and many researches in fact, show the opposite.
As a matter of fact, it is very logical to conclude that some people are not impaired at a higher level than the legal alcohol limit of .08 BAC. This was also proven and observed by many researchers, medical professionals and a police officer.

For example, recent scientific articles show that the alcohol levels do not accurately predict impairment in someone who is tolerant to the effects of alcohol.  James Roberts and Denis Dollard article in the American College of Medical Toxicology in 2010 published a report of a 35-year-old man in Philadelphia hospital who did not show any level of impairment despite having a very high level of alcohol in his blood (serum level of 555 mg/dl).  That is despite that many other published studies show that blood alcohol concentration of 300-400 mg/dl will cause many people be unable to stand or walk and even collapse into a coma.  Death is common at 450 mg/dl (caused by respiratory depression).  Yet, this man did not appear intoxicated in what would cause a certain death to many others.  Medical books often state that chronic alcoholics do not appear intoxicated with a moderate level of alcohol consumptions.  Many alcoholics function normally in daily society so that people who surround them can not even tell that he or she was drinking despite a very high blood alcohol levels.  The point is: government experts often say things to get a conviction and ignore scientific evidence because it helps them get convictions.  But, you can not fight this kind of case by yourself.

High Blood Alcohol Levels in Los Angeles DUI cases (special allegation cases .15 and .20 BAC)

High Blood Alcohol LevelThe legal limit of alcohol for adult non-commercial drivers in California is .08% blood alcohol level.  When a driver is above this blood alcohol level (above .08%) at the time of driving, he is legally guilty of a violation of California Vehicle Code section 23152(b).

California DUI law is structured to increase punishment for crimes when a prosecutor believes that something happened to make a DUI more serious.  When that special situation happens, the prosecutor, in addition to the DUI charges, will file special allegations that will usually make the punishment more severe.  The special allegation is written in the complaint below the criminal charge.  For example, first offense DUI punishment does not require jail sentences; but, as discussed in the article DUI Refusal in Los Angele, a special allegation of a refusal to submit to a chemical test will have a requirement that the defendant serves 48 hours in jail.

Similarly, a felony DUI with injury is not a strike, but when a special allegation of a “great bodily injury” is filed, under California three strikes law, a defendant will be charged with a violent strike offense.  In addition to changes in the nature of an offense, a special allegation can increase total jail time, mandate additional terms of probation, or give discretion to the judge to punish DUI drivers more severely.

Los Angeles drunk driving attorney are experts in showing that despite tests results being above the legal limit at the time of testing, you were not guilty of a DUI in Los Angeles at the time of driving.  Nevertheless, when the blood alcohol level is much higher than .08% blood alcohol level, the prosecutor is likely to charge a special allegation of high blood alcohol level.  This special allegation is found in California Vehicle Code section 23578 and covers blood alcohol level at or above .15%.  With this special allegation, the judge has the power to impose additional requirements on the defendant.  One common requirement with a special allegation of “high blood alcohol level” is the increased alcohol program.  A proven or plead blood alcohol level of .20% of higher will allows the court to impose a 9-month program instead of a 3-month program.  Also, the court may impose additional educational classed on the defendant, such as Mothers Against Drunk Driving, or Hospital and Morgue program.

High blood alcohol level special allegations, while commonly charged by the Los Angeles DUI prosecutors, can usually be dismissed in a plea bargain.  Also, the special allegation of high blood alcohol level can be defeated just like a DUI charge by arguing margin of errors, raising blood alcohol defense or any other commonly used DUI defenses.

Recently, the court of appeals addressed a question whether Penal Code section 954 prohibits conviction for the same offense so that a person cannot be convicted of VC 23152(a) and VC 23152(b).  However, despite PC 954, the Supreme Court held that single act can support multiple charges and multiple convictions.  At the end the court held that a person can be convicted of both offenses despite prohibition in Penal Code section 954

If you are arrested for a DUI in Los Angeles, you might think that your case is not defensible if your blood or breath test shows you to be above the legal blood alcohol limit.  Los Angeles DUI lawyer is able to defend your case even when you have high blood alcohol level.  A blood alcohol level can be inaccurate, or you might have been pulled over without a good legal reason.  You do not have to prove your innocence.  Instead, the burden is on the prosecutor to prove your guilt and if they can’t provide evidence of every element of an offense, beyond a reasonable doubt, you win should be automatic.
Los Angeles DUI Attorney

Los Angeles DUI attorney can help you after your Los Angeles DUI arrest.  We aggressively litigate DUI cases and are able to find defenses in even the most difficult DUI cases.  Our practice is exclusive to DUI defense and we are able to provide quality representation at an affordable price.
Please call (818) 921 7744 for a free consultation anytime.



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