Can someone with blood alcohol level .07 be prosecuted?

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Can someone with blood alcohol level .07 be prosecuted?

Can some one with blood alcohol level .07 be prosecuted? No accident or anything, just a traffic stop.

Asked on December 24, 2010 under Criminal Law, California


Rick Mueller / San Diego County DUI Law Center

Answered 13 years ago | Contributor

DUI Criminal Defense Attorneys hear California state toxicologists routinely testify folks can be impaired at .05% BAC or more (rather than the legal limit of .08% or more BAC). What?Non-commercial adult driver arrested for a California DUI with lower than .08% BAC encounter DUI police "conclusions" that even small amounts of alcohol cause impairment.


DUI criminal defense lawyers discuss jury instructions for drunk driving trials.Criminal Jury Instruction Number 2110. Driving Under the Influence (Cal. Veh. Code, § 23152(a))A person is under the influence if, as a result of (drinking [orconsuming] an alcoholic beverage/ [and/or] taking a drug), his orher mental or physical abilities are so impaired that he or she isno longer able to drive a vehicle with the caution of a soberperson, using ordinary care, under similar circumstances.The manner in which a person drives is not enough by itself toestablish whether the person is or is not under the influence of (analcoholic beverage/ [or] a drug) [or under the combined influenceof an alcoholic beverage and a drug]. However, it is a factor to beconsidered, in light of all the surrounding circumstances, indeciding whether the person was under the influence.If the People have proved beyond a reasonable doubt that asample of the defendant's (blood/breath) was taken within threehours of the defendant's [alleged] driving and that a chemicalanalysis of the sample showed a blood alcohol level of 0.08 percentor more, you may, but are not required to, conclude that thedefendant's blood alcohol level was 0.08 percent or more at thetime of the alleged offense.In evaluating any test results in this case, you may considerwhether or not the person administering the test or the agencymaintaining the testing device followed the regulations of theCalifornia Department of Health Services.The above paragraph that begins with "If the People have proved beyonda reasonable doubt that the defendant's blood alcohol level was 0.08 percent"explains a rebuttable presumption created by statute. (See Veh. Code,§ 23610; Evid. Code, §§ 600-607.) The California Supreme Court has heldthat a jury instruction phrased as a rebuttable presumption in a criminal casecreates an unconstitutional mandatory presumption. (People v. Roder (1983)33 Cal.3d 491, 497-505 [189 Cal.Rptr. 501, 658 P.2d 1302].) In accordancewith Roder, the instructions have been written as permissive inferences. Inaddition, it is only appropriate to instruct the jury on a permissive inferenceif there is no evidence to contradict the inference. (Evid. Code, § 604.) Ifany evidence has been introduced to support the opposite factual finding,then the jury "shall determine the existence or nonexistence of the presumedfact from the evidence and without regard to the presumption." (Ibid.)Therefore, the court must not give the bracketed paragraph that begins with"If the People have proved beyond a reasonable doubt that the defendant'sblood alcohol level was 0.08 percent" if there is no substantial evidence thatthe defendant's blood alcohol level was at or above 0.08 percent at the timeof the test. In addition, if the test falls within the range in which nopresumption applies, 0.05 percent to just below 0.08 percent, do not give thisbracketed sentence. (People v. Wood (1989) 207 Cal.App.3d Supp. 11, 15[255 Cal.Rptr. 537].) The court should also consider whether there issufficient evidence to establish that the test result exceeds the margin of errorbefore giving this instruction for test results of 0.08 percent. (ComparePeople v. Campos (1982) 138 Cal.App.3d Supp. 1, 4-5 [188 Cal.Rptr. 366],with People v. Randolph (1989) 213 Cal.App.3d Supp. 1, 11 [262 Cal.Rptr.378].)

If you are under .05, there is a jury instruction (below) that you are presumed

not to be under the influence of alcohol.The statute also creates a rebuttable presumption that the defendant was notunder the influence if his or her blood alcohol level was less than 0.05percent. (People v. Gallardo (1994) 22 Cal.App.4th 489, 496 [27 Cal.Rptr.2d502].) Depending on the facts of the case, the defendant may be entitled to apinpoint instruction on this presumption. It is not error to refuse aninstruction on this presumption if the prosecution's theory is that thedefendant was under the combined influence of drugs and alcohol. (People v.Andersen (1994) 26 Cal.App.4th 1241, 1250 [32 Cal.Rptr.2d 442].)If the evidence demonstrates that the person administering the test or agencymaintaining the testing device failed to follow the title 17 regulations, givethe bracketed sentence that begins with "In evaluating any test results in thiscase." (People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190][failure to follow regulations in administering breath test goes to weight, notadmissibility, of the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417[121 Cal.Rptr.2d 854, 49 P.3d 203] [same].)

So the prospect of a DUI conviction depends on the specific facts of each case.

Remember that a lower concentration of alcohol in your blood can still purportedly mean you are under the influence or impaired.

DUIs are potentially costly in terms of fines, court-imposed fees, insurance rates, ignition interlock devices, vehicle impounds, public work service, alcohol programs, and the biggest fear - custody. Folks hire DUI criminal defense attorneys to contest their Drunk Driving charges to save their driver's licenses.

DUI cops often do not only use numbers from a breath test gadget to decide if a person is under the influence of alcohol (and/or drugs) or is impaired. A DUI officer frequently believes, even before doing a breath test, that the driver should be arrested for a DUI.

Observations involving one's lack of balance, questionable speech, ability to follow directions, basic motor skills, and type of driving are variables that go into an opinion of being under the influence of something.

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 13 years ago | Contributor

Yes, it is possible for someone to be prosecuted if their BAC is under .08.  In CA, there is a zero tolerance rule if you are under 21, since by law, you are not supposed to be drinking. A person under 21 will be prosecuted for underage drinking with even a .01 (i.e. the .08 does not apply).  In an under 21 case, the drivers license is suspended for a year.  Also, you must request a hearing at the DMV within 10 days of your arrest or you lose substantial rights.  Additionally, even if you are over 21, you could potentially be charged with a DUI even though you were under a .08 as per Vehicle Code section 23152(a) (in other words, you can be charged regardless of your BAC if you are objectively impaired).

At this point, you should consult with an experienced DUI attorney in the area of where you were charged.  Skilled legal counsel may be able to get the charges dismissed/reduced, or win at trial.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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