DUI Lawyer: Can I Get a DUI Without My BAC Above .08

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suit and tie 2I received a phone call the other day from a frantic client who had just received their first DUI.  After discussing the facts of the case with the client, I was asked if we could prove that their Blood Alcohol Level (BAC) was under a 0.08%, if the case would be dismissed.  I said “no”.  It was a shock to the client to learn that even if their BAC was under the legal limit, they could still be charged with a DUI.

Don’t feel bad if you thought the same thing.  It makes sense that if you are driving with a BAC under the legal limit, then you should not be charged with a DUI.  Most people think this way.  After all, why would they make it a law stating that you can’t drive with more than 0.08% alcohol in your blood if you can still get in trouble driving with a lesser amount in your blood?   I will try and make some sense of it here.

When you are charged with a DUI, typically, you are charged with two separate counts.  These are commonly referred to as the ‘a’ and ‘b’ counts.  You can find the exact language of each of the counts here http://www.dmv.ca.gov/pubs/vctop/d11/vc23152.htm.  Let’s take a look at each count separately:


DUI charge 23152(a): Driving Under the Influence of Alcohol and or Drugs

In order to be found guilty of this count, the prosecutor must prove two things:

1) that you were driving a vehicle

2) While you were driving the vehicle you were under the influence of alcohol or drugs or both

The term “under the influence” means that your mental/physical abilities are so impaired that you can no longer drive a vehicle like a sober person under similar circumstances.

You will notice that nothing in the section mentions the amount of alcohol or drugs in your system, only that there was some trace of alcohol and or drugs and that it caused a mental physical impairment when driving the vehicle.


DUI charge 23152(b): Driving with a BAC of 0.08% or higher

In order to be found guilty of this count, the prosecutor must prove two things:

1) that you were driving a vehicle

2) that you drove the vehicle with a BAC of 0.08% or more determined by weight

You will notice that, unlike the ‘a’ count, this count has nothing to do with your ability to drive.  It is a bright line standard.  If your BAC is 0.08% or higher, and you were driving a vehicle, you are guilty of this count.

After breaking down both the ‘a’ and the ‘b’ count, you can see how you can be found guilty of a DUI even if you BAC is below 0.08%.  If your BAC is below 0.08%, the prosecutor cannot charge you with the ‘b’ count, but if your driving is impaired, they can still charge you with the ‘a’ count.  It would still be a DUI.  In other words, if you are driving under the influence of any amount of alcohol or drug, and your driving is impaired, no matter how little you have had to drink, you can be charged with a DUI.

If you find that you are charged with a DUI, give us a call and come in for a free consultation.  We can help: The Law Offices of Mark A. Gallagher, 800-797-8406.

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