Call Now 323-464-6700 for a Free Consultation

No, it is not Unlawful to Drink and Drive

Yes, you read the title correctly. It may be totally inappropriate to write in a blog, but it is true. It is not illegal to drink and drive. Perhaps the best way to phrase that is not unlawful to drive after consuming alcohol. It is illegal to drive while under the influence of alcohol. What is the difference? The amount of alcohol in your bloodstream and whether it impairs you driving ability to safely operate a motor vehicle.

When Drinking and Driving is Illegal under California Law

California Vehicle Code 23152 prohibits driving under the influence of drugs and alcohol. According to the law:

  • It is illegal for anyone to drive while under the influence of any alcoholic beverage.
  • It is illegal to drive a vehicle if you are addicted to any drug.
  • It is illegal for anyone with a 0.04 percent or higher by weight, of alcohol in her or his blood to drive a commercial vehicle.
  • It is unlawful for anyone to drive a vehicle who is under the influence of alcohol and drugs.

As you’ve read, 23152 is specific when explaining what acts are unlawful regarding driving while under the influence, or DUI. What you did not read is that driving after drinking is illegal. The only time it is illegal is when:

  • An individual is under the influence of alcohol and/ or drugs, or
  • He or she has a blood alcohol concentration, or BAC, 0.08 percent or higher for drivers of passenger vehicles, or
  • An individual has a BAC of 0.04 percent of higher and is a commercial driver.

What is Driving under the Influence in Los Angeles

So if it is not unlawful to drive after drinking, how is driving under the influence of alcohol and/or drugs determined? A driver may be considered in violation of 23152(a) if the driver's normal driving abilities are impaired due to alcohol and/or drugs to the extent that it is unsafe for him or her to operate a vehicle.

Yes, alcohol and drug consumption impairs your judgment. It affects your vision. It impacts your motor skills. Most importantly, it delays your reaction time. Thus, you may not be able to act quickly enough to avoid an accident. Yet, the impact the drug or alcohol has on a person varies from the following:

  • The type of alcoholic beverage or drug consumed.
  • The amount of alcohol or drug consumed.
  • Your weight.
  • Your diet.
  • Your metabolism.
  • Other health conditions.

That is why evidence of alcohol and/or drug consumption is not enough to prove intoxication. Instead, police have to use other things to determine the level of intoxication such as:

  • Your mannerisms.
  • An officer’s observations.
  • Field sobriety tests results.
  • Breath, blood or urine test results.

All of the above can be challenged by your defense attorney at trial by cross examining the arresting officer. The things your attorney looks for is inconsistencies in the officer’s story and/or evaluation of your impairment. Other evidence your attorney may use to prove your innocence is audio or video recordings of your sobriety tests and initial police stop. Challenging this evidence can be valuable in proving that your ability to drive was not impaired.

Another issue that can be attacked is your blood alcohol concentration level, or BAC. Did your BAC impair your driving abilities at the time you were driving? In some cases it may be tough for the prosecution to prove because BAC levels tend to change over time. They rise then fall after alcohol consumption. If your attorney can prove that your BAC level was actually below the legal limit, it will be damaging to the prosecution’s case.

Knowing when it is not unlawful to drive will help you better avoid a DUI arrest. Contact the Law Offices of Jonathan Franklin today to schedule your free consultation to discuss you DUI charges, possible defenses and trial strategies.

Board of Governors,

America's Top-Ranked Law School For Trial Advocacy

Stetson University DUI Program

Contact Information

Jonathan Franklin DUI Attorney
6777 Hollywood Blvd Ste 508
Los Angeles, CA 90028