Do I have to be “drunk” to be charged with a DUI?
The short answer is: No. In California, there is no crime called “drunk driving.” There are, however, many different DUI crimes in California. The most common DUI charges are Vehicle Code Section 23152(a) (driving “under the influence”) and 23152(b) (driving with a blood alcohol content (BAC) of .08 or higher). It is possible to be convicted of either of these offenses without being “drunk.” Let's take a look at each of these charges:
- Vehicle Code Section 23152(a) - AKA “driving under the influence”
Under Vehicle Code Section 23152(a), it is a crime to drive a vehicle while “under the influence” of alcohol. You may be asking yourself, “Isn't ‘under the influence' the same thing as ‘drunk'?” It's a good question. The answer is: No. Although “under the influence” is not defined in the statute, the jury in a criminal trial is typically given the following definition of “under the influence”:
“A person is under the influence if, as a result of consuming an alcoholic beverage, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.”
Under this definition, you do not have to be “drunk” to be convicted of a DUI under Vehicle Code Section 23152(a). The standard is whether you are able to drive a vehicle with the same caution that a sober person under similar circumstances would be able to. If charged under this law, the prosecutor will attempt to use the following evidence to prove that you were “under the influence”:
- Any unusual or unsafe driving (swerving, speeding, failing to stop or turn on your headlights at night, etc.);
- The police officer's observations about your appearance (odor of alcohol, slurred speech, red/watery eyes, unsteady gait, etc.)
- Your performance on Field Sobriety Tests (FST's) (NOTE: you do not have to do these tests);
- The results of your breath and/or blood tests (the jury is allowed to presume that you are under the influence if your BAC is above .08); and
- ANYTHING you say to the police (which is why you should never talk to the police).
If you have been charged with a DUI under Vehicle Code Section 23152(a), a skilled DUI attorney can review the evidence collected by the police and advocate on your behalf. Just because the police decided that you were “under the influence” of alcohol does not mean that the DA can prove that was true. Your case is NOT hopeless.
- Vehicle Code Section 23152(b) - .08 Blood Alcohol Content (BAC) or higher
Under Vehicle Code Section 23152(b), it is a crime to drive while having a BAC of .08% or higher. Some people with higher tolerances to alcohol may not feel “drunk” at a .08% BAC. Sometimes, these people with higher tolerances can safely drive a car. However, it does not matter under this law whether you were actually driving unsafely or whether you were impaired by alcohol. If the prosecutor can prove that your BAC was above .08% at the time of driving, you can be convicted of a DUI under this law.
In order to convict you on this charge, the prosecutor will rely primarily on either a breath or blood test (also called a “chemical test”) that was taken after you were arrested. In California, are required to give either a breath test or a blood test after you are arrested for DUI. (If you refuse to give the chemical test, you can automatically lose your driving privileges for at least one year, even if you are found not guilty of DUI.) If you gave a breath test prior to your arrest on a Preliminary Alcohol Screening (PAS) device, that can be used as evidence against you as well. (NOTE: The PAS breath test is optional. You do not have to give any breath or blood sample unless you are actually placed under arrest on suspicion for DUI.)
These chemical tests are frequently flawed and are often performed incorrectly. Just because the police say you had a high BAC, it does not mean that your case is hopeless. A skilled attorney specializing in DUI cases can review your case and identify whether your test results will hold up in court. We have successfully defended many cases where the police said our client had a high BAC. In January 2020, we received a not guilty verdict after a jury trial in a case where the prosecution presented a 0.28% BAC blood test. That's more than 3 times the legal limit!
Don't give up without a fight! Call our dedicated DUI attorneys today and let us fight for you.
