DUI charge in Orange County with .04/.05 Breath Results.
I just got off the phone with a potential new client who has been charged with a DUI in Orange County with breath test readings of .04% and .05% I was initially stunned by this news until I learned that this was her second arrest for DUI at the age of 24.
The law in California states that a person may be legally prosecuted for a DUI with a blood or breath test reading below .08% If the reading is above .08% a person may be prosecuted for a violation of vehicle code section 23152(b) which makes it an offense to drive with a breath or blood alcohol level at or above this level. However, it is also a rebuttable presumption that a person is driving under the influence of alcohol at or above a .08% in which case the defendant may be prosecuted for a violation of vehicle code section 23152(a) which makes it an offense to drive under the influence of alcohol or drugs. If a defendant's breath or blood alcohol level is at or above .05% but below a .08% a defendant may be prosecuted for a violation of vehicle code section 23152(a) only, but there is no presumption that the person is impaired at this level. Much depends on the other evidence including the driving pattern, performance of field sobriety tests and any objective symptoms of alcohol impairment. Below a .05% it is presumed that a person is not impaired to drive and I have never seen anyone arrested and charged with a DUI with a reading below a .05% until today.
Orange County district attorneys office is constantly pushing the boundaries of what constitutes DUI and, given the fact that the above person has been arrested and convicted of DUI before, I suspect that the case will not be dismissed without a fight.
It should be mentioned that if a defendant is still on probation for a DUI, it is unlawful to drive with any measurable amount of alcohol. Even a .01% could lead to a probation violation and a one year license suspension from the DMV. However, this does not make it a new criminal offense of DUI. The above rules still apply.
I do not think that the above potential new client is guilty and I think the charges should be dismissed. Unfortunately, given her financial situation, I do not think she has the money to hire a good private attorney and I fear she may be "rail-roaded" into pleading to a wet reckless or even a second DUI which, in Orange County carries between 45 and 90 days county jail.