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Driving Under The Influence Statutes Should Not Be Lowered To .05

California’s two most commonly charged drunk driving statutes are California Vehicle Code Section 23152(a) and 23152(b). Often they are charged together as misdemeanor drunk driving charges; however, they can be charged as felonies if the driver had been convicted of four or more other DUI’s in the previous ten years or the driver was convicted of one other felony DUI.

The (b) count is the “Per Se” DUI charge, which makes it unlawful to drive a vehicle with a blood alcohol concentration (BAC) of .08% or greater. In essence, this drunk driving statute creates a rebuttable presumption that if the driver’s BAC is at or above the legal limit, the driver is under the influence for purposes of driving. A jury may convict a person under this DUI statute without any proof that the driver was in fact under the influence at the time of driving.

California Vehicle Code Section 23152(a), however, does not have a BAC level associated with it. Instead it simply states, “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.” (Note: It is irrelevant if the drug is illegal, prescribed, or over-the-counter.)

A person can be charged and ultimately convicted of driving under the influence under this code section if their “mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.” (CALCRIM 2110.)

This (a) statute already encompasses all driving while intoxicated scenarios where the person’s BAC is below .08% including the combined intoxication by drugs and alcohol and in situations where a person is impaired under the legal limit. However, now the The National Transportation Safety Board, NTSB, wants to lower the blood alcohol content to .05.

The Law Offices of Susan L. Hartman agrees with Sarah Longwell, the managing director of the American Beverage Institute who allegedly said, “This recommendation is ludicrous. Moving from 0.08 to 0.05 would criminalize perfectly responsible behavior. Further restricting the moderate consumption of alcohol by responsible adults prior to driving does nothing to stop hardcore drunk drivers from getting behind the wheel.” (Quoted by nbcnews.com.)

Law enforcement agencies should continue to enforce the laws that are already on the books as most people are not under the influence for purposes of driving at this low .05 threshold.


If you’re charged with driving under the influence of alcohol and/or drugs in San Diego, call The Law Offices of Susan L. Hartman for help. We offer a free, confidential phone consultation, so you can learn about your rights and options with no obligation. Call us at 619-260-1122 or use the “Contact Us” form on this page.