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Under The Influence: How Your BAC Can Impact Your DUI Charges


DUI and BAC below 0.08 legal insights In California - Law Firm of Aaron BortelFacing charges for driving under the influence (DUI) can be intimidating and stressful. You might also feel confused about your situation, especially if your blood alcohol concentration (BAC) level was below the standard of 0.08%.

If you were pulled over or arrested for DUI and your BAC was below 0.08, you are probably wondering whether you can still be charged and if you will need to go to court. This article, as well as your DUI attorney, can help you understand:

  • The two vehicle codes that the district attorney’s office uses in DUI cases, and how they differ.
  • Why the district attorney’s office may not file charges against you if your BAC was below 0.08 – and what can increase the chances that they will.
  • Whether you can still be convicted of a DUI in the San Francisco Bay area if your BAC was below 0.08.
Can I Be Legally Intoxicated Even If My BAC Is Below 0.08?

Yes, you could be considered intoxicated for DUI or drunk driving purposes, even if your blood alcohol concentration (BAC) level is below the California limit of 0.08. In most states, the limit is 0.08, except for Utah, where the limit is 0.05.

Intoxication can have different interpretations. When you are arrested for a DUI in California, the term is “impaired,” which generally indicates that you are under the influence of alcohol. Typically, you are charged with two different vehicle code sections:

  • Section 23152 (a) indicates impaired driving, or not driving with the care and caution of a sober person. This is where impairment and intoxication come into play.
  • Section 23152 (b) refers to being at or over 0.08% blood alcohol level. Like most states, California uses the per se With this law, the prosecution does not need to prove that you were impaired; they only have to show that your BAC was at or above the legal limit of 0.08%.

If your case goes in front of a jury or the district attorney’s office, they will typically bring in a forensic toxicologist who will testify about impairment. The scientist or toxicologist will say that, based on their studies, everyone is impaired at a 0.08 blood alcohol level, and almost everyone is impaired at a 0.05 level.

With this testimony from the state’s forensic toxicologist witness, a jury is given evidence that someone could be impaired while they are below a 0.08 blood alcohol level. This means that even if a jury finds that your BAC was at or below 0.08, if your level was above 0.05, you could have been intoxicated while driving. However, people are different and every person has a different tolerance.

Will The District Attorney File Charges Against Me If My BAC Was Under 0.08?

The forensic toxicologist was paid by the state’s lab and the District Attorney’s office to testify and say what the District Attorney (DA) wants them to say. Just because the state’s witness explains that everyone is impaired above a BAC of 0.05 does not signify the end of your case.

Despite what these experts say, in most Bay Area counties, the DA’s office will not file charges against you if your BAC was lower than 0.08. This includes Marin, Sonoma, Napa, San Francisco, San Mateo, Contra Costa, and Alameda counties. Although they could file charges against you for impaired driving, they generally do not if your BAC was between 0.05 and 0.08.

This suggests a double standard. The DA’s office wants to win, and without a 0.08, the per se number, they are not big fans of filing charges. However, if your BAC level was at or over 0.08, they get two chances to win when they file DUI charges against you. They can charge you with the per se law and with impairment.

As long as they convict you on one or the other, that is a DUI conviction. When they just have the impairment charge without the per se number, they almost never file. If they choose to file without the per se number, it is usually because there are other factors involved that they think could help them win, such as:

  • An accident
  • Prior offenses
  • Children in the car
  • Egregious driving
  • Et cetera…

In cases like these, they may decide to file charges since there are likely multiple charges involved. They know that you are more likely to accept a plea deal if they have more evidence against you beyond potentially impaired driving, especially if your blood alcohol content was below 0.08.

Can I Be Convicted Of A DUI If My BAC Was Below 0.08 In San Francisco Bay Area Counties?

Yes, it is possible to be convicted of a DUI with a BAC below 0.08 in Bay Area counties such as Sonoma, San Francisco, San Mateo, Napa, Alameda, or Contra Costa counties. Driving with a BAC under 0.08 can still be considered impaired driving.

The 0.08 charge, or per se charge is what the DA likes to see when they are going to charge you with a DUI. When the DA charges for the vehicle code 23152 (b), indicating that your BAC was at or over 0.08, they will almost always charge for the 23152 (a) code as well. This charge indicates that you are not driving with the care and caution of a sober person, likely because you are impaired by alcohol or possibly drugs.

This could include prescription drugs, especially if you have taken a larger dose than what was prescribed to you, if the DA thinks this has caused impairment. Just like the previous scenario, if your case goes to a jury trial, the DA’s office will bring in a forensic toxicologist who will testify that drugs can impair, or that alcohol at a level of 0.05% or higher causes impairment in almost everyone.

While 0.08 is the level that toxicologists will say impairs everyone, you can still get convinced of a DUI if your level was below 0.08. Certain counties, like Santa Clara County, are notorious for bringing charges when someone is below a 0.08 blood alcohol level. They have a lot of interns and other people who will try cases, and they move forward on almost every case. It’s a very tough county.

While other counties occasionally will pursue cases with lower BAC levels, most do not. The ideal result is if your alcohol level was below 0.08 and the county you were arrested in makes a decision not to file charges against you. They generally have up to a year from the date of the incident to file the charges, and if they do not file charges by then, they typically will not be filed.

For more information on Having A BAC Level Below 0.08 In California, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 523-7878 today.

Aaron Bortel

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