Yes. In Los Angeles, the offense of drinking and driving is heavily punished, with career and personal life-changing consequences. As a driver, you typically understand that the designated BAC limit is .08% if you are at least 21 and .01% when you are under 21. And because of these limits provided in the law, there is a common myth that even if you blow under the legal limit, you will not be apprehended or charged with DUI. However, the reality is you can face DUI arrest or charges even when you blow below the legal BAC limit. This blog highlights instances where you can face DUI counts even with a low BAC.
Criteria for California DUI Arrest
According to Vehicle Code (VC) 23152(a), it is illegal to operate a car while drunk or drugged. When proving this case, prosecutors often cite your driving fashion or the signs of intoxication you portrayed during the traffic stop. The common symptoms of intoxication the officers observe are:
- Your overall appearance or conduct
- Unsteady posture
- Poor performance in field sobriety tests
- Red, watery eyes
- Alcohol odor on your breath
Another statute that defines DUI is VC 23152(b). Per the statute, it is unlawful to operate a car when your BAC is at least .08% in your system. The prosecutor builds a case against you using the blood, urine, or breath test results conducted by the arresting officer.
Police officers need reasonable suspicion before stopping you for drinking and driving. Some of the behaviors the officer look for to instruct you to pull over include:
- Erratic driving
- Weaving from one lane to another
- Equipment violation
- Speeding
- Running a red light
- Failure to proceed through an intersection after lights have changed
Additionally, the police can have reasonable suspicion when called after you have caused a road accident.
After the traffic stop, the officers will require probable cause to make an arrest. This is when they look for intoxication signs mentioned under VC 23152(a). When they observe these signs, they can arrest you and take you to the nearest hospital or police station to administer chemical tests to establish the blood alcohol weight in your system.
You will be arrested for DUI when the results from the chemical tests come as follows:
- .08% or higher for an adult driver
- .04% or more commercial drivers
- .01% for underage drivers
- At least .04% for taxi or ride-sharing drivers
If the test results indicate an illegal BAC, it will be easy for the prosecutor to convict you of drunk driving. However, do not assume that you are immune from DUI charges or conviction because you have a low blow or a BAC within the legal limit. The prosecutor will still file charges for VC 23152(a) violation, although this time around, it will be challenging to prove their case.
Nonetheless, do not assume a conviction is impossible in a low-blow incident. You could still be convicted under particular circumstances. Additionally, when the BAC is close to the designated limit or there are signs of falling blood alcohol levels, the prosecutor will still prefer charges against you when the BAC is .05% or above.
Proving a DUI Charges with a Low Blow
You will automatically face DUI charges when you blow above the designated limit, while you can face DUI charges under particular circumstances when you blow below the legal limit. California prohibits the act of operating a car while impaired by any substance like alcohol, controlled substances, and prescription drugs, regardless of the quantity in the system.
Alcohol affects people differently. Some will take one drink, and due to their low alcohol tolerance, they are drunk even if their BAC is way below the legal limit. Therefore, even if you have a low blow, the prosecutor can still file DUI charges after considering other factors that prove intoxication apart from your BAC.
Intoxication or impairment refers to deficiencies in your motor skills like blurred vision or poor balance. Operating a car requires you to pay full attention to the road, meaning you need your motor skills to be 100 percent. Nonetheless, when police notice signs of impairment or reasonably believe you were drinking, you will face drunk driving charges.
The prosecutor cannot use driving conduct, visible impairment, causing an accident, or failure in FSTs to prove you were operating a vehicle when drunk or drugged. Based on the case's circumstances, these are just factors the court considers to establish whether you were drinking and driving after a BAC under the legal limit.
The prosecutor must present evidence, including dash cam videos of your swerving on operating the car dangerously. These videos will support the prosecutor’s assertion of your driving conduct during the accident. Also, the prosecutor will rely on the police report to prove their case. The statements contain all information about the traffic stop, including the traffic stop and your performance in the FSTs. If you performed poorly, the report would show that you performed poorly because of the intoxication.
Furthermore, the report highlights the arresting officer’s observation of your driving pattern and physical appearances, like red eyes or alcohol odor on your breath. Although the driving pattern or your symptoms could have been caused by something other than alcohol or drugs, you were probably impaired. With evidence to back the assertions, the prosecutor will obtain a conviction.
Being charged with DUI with a BAC under the designated limit makes the violation a personal offense based on the arresting officer’s anecdotal observations, which creates room for you to contest the charges and possibly avoid a sentence. Therefore, with the proper legal representation, you can challenge the counts and prevent a conviction.
Low Blow Arrests and the DMV
Unless you were driving with a BAC of .08% or higher, the DMV would not issue an administrative suspension of your driving privileges. This is unlike the prosecutor, who has the discretion to charge you with a drunk driving offense, even when your blood alcohol weight is below the legal limit. The DMV will not issue an administrative driver's license suspension if you are arrested for having a BAC below .08% or intoxicated by drugs. Instead, they will set aside the circumstances and wait for the judge’s decision after a trial.
Typically, after an apprehension for DUI, the arresting officer confiscates your driver’s license and sends it to the DMV. You have up to ten days after your arrest to request an administrative hearing when this happens. Otherwise, you will be subject to automatic license suspension after 30 days as you have waived your right to the proceeding.
The administrative hearing is separate from the court proceeding and is administered by a DMV officer. After considering the evidence presented by your side and the prosecutor, the officer decides whether to disregard or reinstate the suspension. If your BAC at the time of arrest was below the legal limit and you did not resist an arrest, the DMV will not reinstate your suspension. Instead, they will set it aside. Nonetheless, they will suspend the license when your BAC is outside the legal limit or you refuse to submit to chemical testing.
Similarly, if the chemical test results show you were not under the influence of alcohol but drugs, the administrative revocation of your driving privileges will be set aside until the court issues a verdict. However, you could still face charges for DUI of drugs.
The DMV can only revoke your driving privileges when you are ultimately found guilty of VC 23152(a) violation, regardless of whether your BAC was below the legal threshold. Luckily, even after the suspension of your right to operate an auto, you can continue driving if you install an ignition interlock device in your car for five months but only when it is your first DUI offense.
Low Blow and Reduced Charges
As indicated earlier, the prosecutor relies on circumstantial evidence to convict you for operating a car with a BAC below the designated limit. This creates room for you to challenge their arguments and avoid a conviction. However, because all the prosecutor wants is a conviction, if they realize one is not possible, your DUI attorney can negotiate for a charge reduction to a non-DUI offense in exchange for pleading guilty to the lesser offense. The possible reduced charges the prosecutor can offer include:
1. Wet Reckless
The most common reduced charge the prosecutor will offer is wet reckless under VC 23103.5. The crime is unique because it only exists in plea reductions in DUI cases. You cannot be independently apprehended and charged with a violation of VC 23103.5. You can only face the charges after accepting the prosecutor’s offer for a count reduction. Many prosecutors prefer this reduced charge over others like dry reckless because it is a priorable offense, meaning that in the event of another future DUI, the conviction for wet reckless will count as a prior DUI, enhancing your punishment.
The prosecutor tables this offer when they realize they lack sufficient evidence to convict your DUI charge in a trial. Also, your attorney could talk you into a guilty plea for a reduced charge like wet reckless to avoid the penalties and collateral consequences when a conviction is inevitable.
The advantage of a wet reckless plea is that a sentence will not result in a mandatory jail sentence. Additionally, a conviction will not trigger an administrative license revocation, although it will count as a prior when arrested for drunk driving in the future.
2. Dry Reckless
When you are charged with a DUI under the designated limit, you are eligible for dry reckless under VC 23103 as a reduced charge. A dry reckless conviction keeps your DUI record clean and does not trigger administrative driver’s license revocation. The count is even better than wet reckless because it is not priorable, meaning it will not count as a prior offense in the event of a subsequent drunk driving charge.
When proving a violation of VC 23103, the prosecutor must demonstrate you drove a car with wanton disregard for the safety of other road users or property. If your driving fashion presented a substantial risk of harm and you disregard the risks, you are guilty of the offense even if you never intended to harm anyone. Speeding will not count as wanton disregard of safety, but it is a factor to be considered in determining a conviction for a dry reckless charge.
Dry reckless is a misdemeanor offense, but unlike wet reckless, it is not priorable, meaning it will not enhance your sentence after subsequent DUI offenses. Again, a conviction will not trigger a license suspension, although you risk at most ninety days in county jail. Incarceration is rare in these offenses. The most likely sentence you will face is twelve-hour alcohol sessions.
3. Speed Exhibition
Per California VC 23109(c), participating in a speed race or exhibition is an offense. At a glance, the crime does not seem related to drunk or drugged driving, but the truth is the prosecutor could consider a DUI charge reduction to speed exhibition. A VC 23109(c) charge is the second-best result in a DUI case after an utter charge dismissal.
Several reasons explain why a speed ex charge is advantageous over a DUI sentence. First, a VC 23109(c) violation probation is shorter than that of a DUI sentence. The probationary period for a DUI ranges from three to five years, while that of a speed exhibition is between twelve to twenty-four months. Further, even if you violate your probation terms, incarceration for the violation will be shorter than a DUI sentence. A speed ex conviction attracts at most 90 days of jail incarceration, which is shorter than that of a DUI conviction which ranges from six to twelve or twenty-four months, based on your drunk driving history.
Another advantage of a speed exhibition charge is that it is non-priorable and cannot be used for sentence enhancement in drunk or drugged driving charges. For this reason, if you face a DUI count but plead guilty to speed exhibition after charge reduction, even if you are arrested for another drinking and driving offense in the future, it will count as your first. However, this charge reduction does not come easy. On top of having a BAC under the designated limit, you will need a spotless record or to demonstrate inaccuracies in the police statement to obtain this charge reduction.
Find an Experience Los Angeles DUI Attorney Near Me
When you have a low blow or have been operating a car, and you blow below the designated limit and are still apprehended for a DUI, you must immediately talk to a profound attorney. At Jonathan Franklin DUI Attorney, we are ready to help effectively contest the charges. And if the case seems hopeless, we will negotiate for a charge reduction to face lesser penalties. To schedule a meeting in Los Angeles, CA, call us today at 323-464-6700 for a zero-obligation consultation.
