Can you be given a DUI if you were under the legal limit? 14 Answers as of October 06, 2010

Is it legal for police officers to give someone a DUI even if they were bellow the .08 that it says in California law?

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Law Offices of Ramona Hallam
Law Offices of Ramona Hallam | Ramona Hallam
Yes. You can get a DUI under the legal limit. Some people are impaired even with less than .08, while others can go much higher without being intoxicated. For instance, a person who drinks daily can "handle their liquor" in a different way that seems more efficient..08 is the presumedlevel (presumably intoxicated).It is not conclusive and can be challenged. People with less than .08 are often charged with "wet reckless." Wet reckless is charged as Vehicle Code 23103:

(a) Any person who drives any vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.The charge is priorable as a DUI and, as set forth in VC 23103.5, must go on record as an alcohol or drug related offense so the DMV can act on any subsequent DUI charges. Thus, for 10 years, you will bear the same risk of being charged with a 2nd offense, as a person who has a full blown DUI
Answer Applies to: California
Replied: 10/6/2010
Wise Law Group
Wise Law Group | Michael J. Wise, Esq
Yes. California Vehicle Code section 23152 has two subsections, (a) and (b). Section (b) deals with a blood alcohol of .08 or more. However, subsection (a) deals with simply being impaired for the purpose of driving. An experienced officer could be called to testify at trial that you were impaired for the purposes of driving even though your BAC was below .08, depending on factors in the case.
Answer Applies to: California
Replied: 10/5/2010
The Law Offices of Robert L. Driessen
The Law Offices of Robert L. Driessen | Robert L. Driessen
Yes, you can be charged with either 23152(a) driving while under the influence of alcohol or 23152(b) driving with a blood alcohol concentration of .08 or higher. If you are being charged with a DUI you should contact an attorney immediately.
Answer Applies to: California
Replied: 10/5/2010
Law Offices of Staycie R. Sena
Law Offices of Staycie R. Sena | Staycie R. Sena
Yes. I have seen BACs as low as .05 prosecuted under Vehicle Code section 23152(a).
Answer Applies to: California
Replied: 10/5/2010
Alanna D. Coopersmith, Attorney at Law
Alanna D. Coopersmith, Attorney at Law | Alanna D. Coopersmith
Yes. In California a DUI offense can be charged under two legal theories. The first is that you were driving under the influence of alcohol, meaning that your driving was impaired by alcohol, and the second is that you were driving with a blood alcohol level of .08% or higher.
The police is probably charging you under the first legal theory. Additionally, they may be contending through reverse extrapolation that your blood alcohol level was less than .08 percent when you were tested, but was .08 or above when you were driving.
Answer Applies to: California
Replied: 10/4/2010
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    Yes per vehicle code 23152a. I have had a lot of success getting those charges dismissed though. Call me for a free consult if you would like to.
    Answer Applies to: California
    Replied: 10/4/2010
    Law Office of Geoffrey M. Yaryan
    Law Office of Geoffrey M. Yaryan | Geoffrey M. Yaryan
    Yes, if the prosecution can prove that you were impaired because of alcohol.
    Answer Applies to: California
    Replied: 10/4/2010
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Of course. There are many DUI filed with NO level of BA. What can you do? Defend the charges. Go to court, enter a not guilty plea if appropriate, arrange bail reduction or OR, set up and attend the court hearing[s] and trial date[s], file motions as applicable, go to trial if it cannot be resolved with a plea bargain. Raise all the available defenses with whatever admissible and credible witnesses, evidence and facts are available for legal arguments for plea bargaining or at trial. If you do not know how to do these things, then hire an attorney that does, who can likely get a decent plea bargain for you. If serious about doing so, feel free to contact me.
    Answer Applies to: California
    Replied: 10/4/2010
    The English Law Firm
    The English Law Firm | Robert English
    Yes, you can get a DUI for less than .08% BAC. The law provides two theories under Vehicle Code 23152. VC 23152(b) is the statute that provides the .08% standard, however VC 23152(a) can be used to charge and/or convict for driving under the influence without a specific BAC. You can also be charged with DUI for influence of drugs or medication that are not alcohol. If your observed driving and/or performance on sobriety tests shows you to be under the influence, regardless of your blood alcohol, you can still be convicted. However, evidence of a BAC under .08 is strong evidence for an acquittal and you need to speak to an attorney about your specific case before taking any action.
    Answer Applies to: California
    Replied: 10/4/2010
    Steven Mandell
    Steven Mandell | Law Offices of Steven Mandell
    Yes, it is possible. However, if you are under the .08 blood alcohol concentration, it is possible the prosecutor will not file the case. But California law actually says that anyone over a .05% BAC can be under the influence, so it is possible that you can be arrested and even charged with a DUI. The DUI laws have gone from the simplest and most basic misdemeanors to the most complex, most punitive, most mandatory punishment and most confusing misdemeanors known to mankind! I suggest you have a consultation with a criminal lawyer experienced in DUI and DMV matters. If you would like to speak to me about this case, do not hesitate to call for a free consultation. Good luck.
    Answer Applies to: California
    Replied: 10/4/2010
    The Law Office of Denis White
    The Law Office of Denis White | Denis Hurley White Jr.
    Under VC23152(a) you may be, depending on the facts, convicted of a DUI. In this instance the District Attorney has to prove you were impaired.
    Answer Applies to: California
    Replied: 10/4/2010
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Yes, it is legal. Vehicle Code 23152(a) addresses driving "under the influence," regardless of BAC. In other words, if you have very little tolerance, and you get drunk with just 3 drinks (0.06%), then you can be charged with VC 23152(a). Of course, if you are under 21, then the legal limit is lower, but the bottom line is you can aways be charged at any BAC level.
    Answer Applies to: California
    Replied: 10/4/2010
    Desert Defenders
    Desert Defenders | John Jimenez
    Yes, its possible to be arrested even if under a .08 blood/alcohol content. The .08 is a presumptive amount. Its possible to be "impaired" in your driving under .08.
    Answer Applies to: California
    Replied: 10/4/2010
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