Being arrested for driving under the influence (DUI) in California can be overwhelming, especially if a breath or blood test shows that your blood alcohol concentration (BAC) was above the legal limit of .08%. However, many drivers mistakenly believe that a BAC above .08 automatically means they will be convicted of DUI. That is simply not true.
California DUI cases can be successfully defended even when chemical testing indicates a BAC above the legal limit. An experienced Northern California DUI defense attorney can examine the circumstances surrounding your arrest, challenge the reliability of chemical testing, and identify weaknesses in the prosecution's evidence.
If you have been arrested for DUI in Chico, Butte County, Glenn County, Tehama County, Yuba County, or Sutter County, understanding your available defenses is an important first step.
Understanding California's .08 DUI Law
Under California Vehicle Code Section 23152(b), it is unlawful for a person to drive a motor vehicle with a blood alcohol concentration of .08% or greater, measured in grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
California also prohibits driving while under the influence of alcohol under Vehicle Code Section 23152(a), regardless of whether the driver's BAC exceeds .08%.
These are separate offenses. A person may be charged with both violations arising from the same incident, although California law generally prohibits multiple punishment for the same act.
Importantly, a chemical test showing a BAC above .08% does not automatically establish guilt. The prosecution must still prove the elements of the charged offense beyond a reasonable doubt.
1. Breathalyzer Tests Are Not Always Accurate
One of the most common defenses in California DUI cases involves challenging the accuracy and reliability of breath alcohol testing.
Breath-testing devices estimate blood alcohol concentration by measuring alcohol in a person's breath. Although these instruments are widely used by law enforcement, they are not infallible.
Several factors can affect the reliability of breath-testing results, including:
Improper calibration or maintenance of the testing instrument.
Failure to follow required testing procedures.
Residual alcohol in the mouth.
Certain physiological conditions affecting breath alcohol measurements.
Operator error or problems with the testing equipment.
California regulations establish procedures for forensic alcohol testing, including requirements relating to instrument accuracy and breath sample collection.
A skilled Chico DUI attorney can obtain maintenance records, calibration records, and other evidence to determine whether the breath test was conducted properly.
If the testing process was unreliable, the defense may be able to undermine the prosecution's evidence that the driver's BAC exceeded the legal limit.
2. Your BAC May Have Been Rising After You Stopped Driving
Another important DUI defense involves the concept of rising blood alcohol concentration.
Alcohol is not absorbed into the bloodstream instantaneously. Depending on when a person last consumed alcohol, their BAC may continue rising after they stop driving.
For example, imagine a driver consumes several alcoholic beverages shortly before leaving a restaurant. The driver is stopped by police and provides a breath sample approximately 45 minutes later.
Although the driver's BAC might measure .10% at the time of testing, that does not necessarily establish that their BAC was .08% or greater when they were actually driving.
This distinction matters because Vehicle Code Section 23152(b) concerns a person's BAC at the time of driving, not simply at the time of chemical testing.
California law recognizes a rebuttable presumption concerning chemical tests conducted within three hours of driving. Under Vehicle Code Section 23152(b), a qualifying test showing a BAC of .08% or greater gives rise to a presumption that the driver's BAC was at least .08% when driving.
However, that presumption can be challenged.
Depending on the facts, a defense attorney may consult a forensic toxicologist to evaluate alcohol absorption, the timing of consumption, and whether the chemical test accurately reflects the driver's BAC at the time of driving.
3. Police May Have Conducted an Illegal Traffic Stop
Even when chemical testing shows a BAC above .08%, the legality of the initial traffic stop can be an important issue.
Under the Fourth Amendment, police generally must have reasonable suspicion of a traffic violation or other criminal activity before stopping a vehicle.
An officer cannot lawfully stop someone merely because they have an unsupported hunch that the driver may be intoxicated.
If police conducted a traffic stop without the necessary legal justification, the defense may be able to file a motion to suppress evidence under Penal Code Section 1538.5.
If successful, such a motion may result in the exclusion of evidence obtained as a result of the unlawful detention, potentially including observations, field sobriety tests, and chemical testing results.
Depending on the remaining evidence, suppression may significantly weaken the prosecution's case or lead to dismissal.
4. Blood Test Results Can Be Challenged
Many California DUI investigations involve blood testing rather than breath testing.
Although blood testing is often regarded as highly reliable, errors can occur during the collection, storage, handling, or analysis of a blood sample.
Potential issues include:
Improper collection procedures.
Problems with sample storage or preservation.
Contamination or sample identification errors.
Laboratory testing or quality-control failures.
Inaccurate or incomplete documentation.
Problems involving the chain of custody.
A defense attorney may request laboratory records, chromatograms, quality-control documentation, and other materials necessary to evaluate the accuracy of the reported result.
In some cases, independent testing or expert review may reveal weaknesses in the prosecution's evidence.
A BAC result above .08% should not be accepted as unquestionable proof of guilt without examining how that result was obtained.
5. The Prosecution Must Prove You Were Driving
California DUI law requires proof that the defendant was actually driving.
This issue can become particularly important when police respond to an accident or encounter someone sitting in a parked vehicle.
For example, officers might arrive at the scene of an accident and find an intoxicated person standing near a vehicle. If nobody witnessed the person driving, the prosecution may have difficulty establishing who operated the vehicle or when the driving occurred.
Likewise, a person found asleep in a parked car is not necessarily guilty of DUI merely because they are intoxicated.
The prosecution must establish the driving element through admissible evidence, whether direct or circumstantial.
In cases involving uncertainty about who was driving or when the driving occurred, an experienced criminal defense attorney may be able to establish reasonable doubt.
6. Field Sobriety Tests Are Not Conclusive Evidence of Impairment
Police frequently rely on field sobriety tests to support DUI arrests.
These tests may include:
Horizontal gaze nystagmus testing.
The walk-and-turn test.
The one-leg stand test.
However, performance on these tests can be affected by circumstances unrelated to alcohol impairment.
Uneven pavement, poor lighting, inappropriate footwear, physical limitations, fatigue, nervousness, and confusing instructions may all affect performance.
Field sobriety tests are investigative tools, not infallible measurements of impairment.
Police body-worn camera footage can be especially valuable in determining whether an officer accurately described a driver's performance.
A DUI defense attorney may compare the officer's written report with video footage to identify inconsistencies or exaggerations.
7. A BAC Above .08 Does Not Necessarily Mean You Were Impaired
California's DUI laws distinguish between driving with a prohibited BAC and driving while impaired.
Under Vehicle Code Section 23152(a), the prosecution must prove that alcohol impaired the driver's mental or physical abilities to such a degree that the driver could no longer drive with the caution characteristic of a sober person exercising ordinary care under similar circumstances.
Under Vehicle Code Section 23152(b), however, the prosecution does not need to establish actual impairment. It must prove that the driver's BAC was .08% or greater at the time of driving.
Consequently, evidence that a driver appeared sober, drove normally, or performed well on field sobriety tests may help challenge an impairment allegation under subdivision (a), but it does not independently defeat a properly established subdivision (b) charge.
This distinction makes it important to examine each DUI charge separately.
8. Can a DUI Be Reduced or Dismissed Even With a BAC Above .08?
Yes. Depending on the facts and the strength of the evidence, a DUI case involving a BAC above .08% may result in reduced charges, dismissal, or acquittal.
Possible outcomes include:
Dismissal: The prosecution may dismiss charges when the available evidence is insufficient or significant legal problems arise.
Reduction to wet reckless: In appropriate cases, a DUI charge may be reduced to reckless driving involving alcohol under Vehicle Code Section 23103.5.
Acquittal at trial: A jury may find the defendant not guilty if the prosecution fails to prove the charges beyond a reasonable doubt.
Negotiated resolution: A defense attorney may negotiate a favorable disposition based on evidentiary weaknesses, mitigating circumstances, or other relevant considerations.
Not every DUI case will qualify for a reduction or dismissal. Nevertheless, the fact that a chemical test showed a BAC above .08% does not eliminate the possibility of a successful defense.
9. Don't Forget About the California DMV Hearing
A DUI arrest can trigger two separate proceedings: a criminal case in court and an administrative driver's license suspension proceeding before the California Department of Motor Vehicles.
In many adult DUI arrests involving an administrative per se suspension, a driver has only 10 days from receiving notice of the suspension to request a DMV hearing.
Failing to request a hearing within the applicable deadline can result in the loss of an opportunity to contest the administrative suspension.
Importantly, a successful defense in criminal court does not automatically resolve every DMV licensing issue.
A Northern California DUI defense lawyer can evaluate both proceedings and determine the appropriate strategy for protecting the driver's rights.
Arrested for DUI in Chico or Northern California? Contact an Experienced DUI Defense Attorney
A DUI arrest involving a BAC above .08% is serious, but it is not the same as a conviction.
Breath-testing errors, blood-testing problems, rising blood alcohol concentration, unlawful traffic stops, and insufficient evidence of driving are just some of the issues that may provide a defense.
At the Davis W. Hewitt Law Office in Chico, California, we represent individuals facing DUI and other criminal charges throughout Northern California, including Butte County, Glenn County, Tehama County, Yuba County, and Sutter County.
Every DUI case deserves a careful examination of the evidence. Before assuming that a BAC above .08% means your case cannot be defended, speak with an experienced criminal defense attorney about your options.
Contact the Davis W. Hewitt Law Office to discuss your DUI case and learn how we can help protect your rights, your driver's license, and your future.
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