California’s Per Se DUI rule is significant because it makes it a crime for an individual to have a certain blood alcohol content (BAC) in his or her body regardless of whether the alcohol is causing any impairment or influence. It means that an individual driving over the BAC limit is automatically guilty of DUI, even without a showing that he or she is actually “under the influence” of any alcohol.
“(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”
This code section makes simply driving and having a BAC level of .08 or higher a criminal offense in California. The presumption is that if a BAC is 0.08% or greater at the time of a blood or breath test, the subject is guilty of DUI, regardless of whether he or she was truly under the influence of alcohol. For the State of California to achieve a successful conviction under this statute, it must prove that the defendant was driving a vehicle, and, at the time of driving the vehicle, had a BAC of 0.08% or more.
Proving that an individual was “driving” a vehicle contemporaneously with a BAC of .08 is not always unequivocal. The prosecution must present evidence that establishes that the defendant moved the car at least some distance. Often, a drunk driver is found by police asleep at the wheel. In this situation, it is not easily ascertainable whether the driver moved the car the requisite distance with a BAC of .08 or higher at the time.
This section is typically charged together with an offense under California Vehicle Code § 23152(a) VC. Although most California drivers perceive that a DUI in California DUI is one crime, it typically involves two separate offenses. Thus, California motorists who drive under the influence of alcohol and/or drugs may be charged with violating both California Vehicle Code § 23152(a) VC (driving while under the influence of alcohol), and California Vehicle Code § 23152(b) VC (driving with a BAC of .08 or higher). Motorists driving while under the influence of alcohol in California are subject to a double-edged legal sword.
California has the following “per se” limits that apply to special classes of drivers, including:
- California Vehicle Code § 23152(d) – DUI by drivers of commercial vehicles (.04%);
- California Vehicle Code § 23152(e) – DUI by taxi, limo and ride-sharing drivers with paying passengers in the vehicle (.04%); and
- California Vehicle Code § 23140 – DUI by drivers under age 21 (.05%).
If you or loved one is charged with Vehicle Code 23152(b) driving with a BAC .08 or higher, contact Dolan Law Offices today at 760-775-3739 or 562-824-4007 to discuss your situation. You may also find out more online here.