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Can You Get a DUI if Your BAC Was Under .08%?


According to the California Vehicle Code § 23152, “it is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” The legal threshold for blood alcohol concentration is .08% (.04% for commercial drivers and zero tolerance for people under the age of 21), but that has created a bit of a myth when it comes to DUI charges. In California, you can be arrested for DUI if your BAC was under .08%.

Police often justify drunk driving arrests even if the BAC was under the legal limit by claiming they observed the driver driving erratically, or by claiming that the driver failed the standardized field sobriety tests (SFSTs). Everyone responds to alcohol differently, which is why “under the influence of alcohol” could mean .08% or it could mean less.

Police Observation versus Chemical Evidence

When it comes down to it, chemical test evidence is more reliable of an indicator than police observation. So while you can be charged with DUI based on police observation, it is much more difficult to be convicted this way. Judges are more willing to convict a person of DUI if there is scientific chemical test evidence to indicate that the defendant was at or above the legal limit.

While police observation and SFSTs carry some weight, they are often seen as “shaky” evidence and not as good of an indicator of intoxication as chemical tests (although chemical tests can also be flawed). For example, police can witness you having a hard time walking in a straight line, but this is as much an indicator of exhaustion as it is intoxication, making it insufficient to convict.

If you or someone you know was arrested for driving under the influence and the BAC was under the legal limit of .08%, contact a Los Angeles DUI attorney at Gold & Witham today. We're here to fight for you!