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Why Is It an Automatic DUI If Your BAC is .08 or Higher?

Posted by Ronald D. Hedding | Apr 24, 2023

This whole concept of a per se DUI is something that some people don't get.  The legislature has determined that .08 is the legal cut-off, where if you're that high, you cannot safely operate a motor vehicle.

DUI If Your BAC is .08 or Higher

So, it's assumed that you're DUI if you blow a .08 or greater.  So, that's the problem you face when you are arrested and end up going to court, and they can prove that you're a .08 or greater.

Now, the closer you are to the .08, the better off you are and the better chance you have to either get the case dismissed or get a lesser charge. 

The reason is that the breath test is not 100% accurate, and even the prosecutor's experts have to admit that there is an error rate of .02. 

So, if you blew a .08, you could have been a .06, but you also could have been a .10.  So, that starts to make it a little tricky for the prosecutor, and if that's all you have is a .08.

Fortunately for them, the police know this problem and will do other things to solidify a DUI.  For example, they will note your driving behavior before you're arrested. 

So, suppose you're swerving all over the road, getting in an accident, or driving dangerously. In that case, that's certainly a symptom of somebody who is under the influence of alcohol and can't safely operate a motor vehicle. 

Field Sobriety Tests

Another thing that they do, if you know anything about DUIs and arrests and pullovers, is they're going to try to make you perform field sobriety tests

Those tests should be designed to determine whether someone can safely operate a motor vehicle if it involves drugs, like marijuana or other drugs; those DUI field sobriety tests are not as effective at determining whether somebody is under the influence of a drug versus alcohol. 

Suppose they think that you're under the influence of drugs. In that case, they will need to get what's called a drug recognition expert out there or bring you to the station where they will likely have one. Then, they will perform different tests than what the offices do for somebody who has been drinking alcohol.

Proving You Were Driving Under the Influence

That starts to give you an idea about what this whole .08 means.  The higher you are, the easier it will be for them to prove you are DUI; you're guilty of violating California Vehicle Code 22153(b) VC, which says your blood alcohol level is a .08 or greater.

If they can prove that, they should be able to get the conviction unless some intelligent criminal defense attorney can show that even though that reading shows a .08, for example, you may have been less and you passed most of the tests, and therefore, you are not DUI.

Another thing you have to be cognizant of, in addition to the per se DUI, is that another charge frequently charged in a DUI case is Vehicle Code 23152(a) VC, which says that you had alcohol in your system.

You couldn't safely operate a motor vehicle.  So, that's another way that they can get you. So, conceivably under that theory, you could be a .06 under the .08 and be unsafe to drive a motor vehicle, assuming they could prove it.

Experienced DUI Defense

I had one client that was driving, and he ended up blowing a .06, and he was swatting at a bee in his car, lost control of his car, and hit a house. 

We got the DUI dismissed and some traffic violations, but they initially filed it as a DUI.  So, you must realize the mentality of the people you are dealing with. 

They err on the side of filing the case regarding DUIs because they're trying to protect the public from people who drink and drive. So, from what I said here, you should realize that you need a great criminal defense attorney that does a lot of DUIs. 

You've come to the right place.  I've been doing this for over 30 years. If you need the best, pick up the phone now.  Ask for a meeting with Ron Hedding.  I stand at the ready to help you.

About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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