Under California law, it’s unlawful to operate an automobile while intoxicated with alcohol. How does a law enforcement officer determine that you are intoxicated? The state has put measures in place to hold drivers to a similar standard. This standard depends on what’s called BAC (blood alcohol content/concentration). When your blood alcohol concentration surparsees the stipulated lawful limit, you are subject to DUI charges.
However, it’s not automatic if your BAC is over the allowed limit, you are guilty of DUI. It could be that the level was falsely high due to one reason or another. Due to this fact, the judge will allow you to contest the BAC results, and it may turn out that you’re innocent after all. To fight the BAC results, you should hire a skilled DUI criminal defense attorney.
If you are facing DUI charges in Bakersfield, contact the Bakersfield DUI Attorneys for help not only to contest the BAC test results but also the prosecutor’s case against you. Reach out to us as soon as you are arrested, as it will give us ample time to build a solid defense strategy.
BAC is the alcohol percentage in your bloodstream calculated by the number of grams of alcohol per 100ml of blood or 210 liters of breath. BAC is measured by portable gadgets that detect the alcohol content of your blood from your breath sample. Alternatively, it may be calculated using a standardized ‘weight versus drinks’ blood alcohol content chart. We also have several online blood alcohol concentration calculators, which can approximate your BAC level.
As mentioned earlier, alcohol affects people differently. Everyone has a unique metabolism, and environmental factors could play an important role. By this, it means that if two individuals drink an equal alcohol amount, it doesn’t necessarily mean their BAC will turn out to be the same. Factors that impact BAC are a person’s:
- Gender and corresponding hormone levels
- The quantity of food you’ve eaten
- The alcohol type and quantity you have drunk
- How long you’ve been drinking
- Water composition
- Enzyme production and levels
- Amount of time within which alcohol is consumed
Therefore, there’s no one-size-fits-all method to calculate your precise BAC without undergoing chemical testing (from your blood sample) due to all the factors mentioned above.
The other method you would consider reliable, apart from blood testing, is using a BAC chart. To use this chart, you only have to locate your weight and the corresponding amount of drinks to approximate your blood alcohol content. If an arresting officer stops you for suspected DUI, he/she will likely request you to undergo breath testing or FSTs (field sobriety tests). When taking the breath test, you are required to blow into a breathalyzer, which will calculate your BAC from the breath sample.
FSTs tests are a sequence of psychological tests that can establish your capability to drive an automobile and sobriety level. These tests are standardized by the NHTSA and may include, but aren’t limited to the Walk and Turn test, HGN (Horizontal Gaze Nystagmus) test, Rhomberg balance test, the alphabet recitation test (from backward), and the One Leg Stand test. Note that the law considers BAC level at the time of driving and not taking the test.
The Legal California BAC Limit
By law, any individual who operates an automobile with a higher than allowed alcohol amount in their system is deemed to be intoxicated. This is what’s called per se DUI as per the Vehicle Codes we will mention below.
‘Per se’ is a Latin word that means ‘in itself.’ Various DUIs are considered ‘per se’ since having a blood alcohol content above or at the stipulated limit is deemed a breach of law in itself. In these kinds of cases, the DA doesn’t have to show that your driving was impaired.
Whether your BAC is over the lawful limit or not depends on your age and the type of vehicle you drive. The law imposes a legal per se limit for most adult motorists at .08% BAC. But it sets an even lower per se limit for underage, commercial, limo, rideshare, and taxi drivers. Specifically, these limits are as follows:
- VC 21352(b), operating an automobile with a .08% or greater BAC (for adult, non-commercial motorists)— Drivers who drive any other automobile that’s not commercial and are 21 years and above are presumed to be legally intoxicated if their BAC is above or at 0.08%.
- VC 23152(d), drunk-driving with a .04% or greater (for commercial drivers)— Drivers who drive commercial vehicles like buses or trucks are held to a higher standard. Thus, the law considers them to be under the influence if their BAC is as low as 0.04%.
- VC 23140, underage vehicle operation with a0.05% or more BAC (for under twenty-one drivers)
- VC 23152(e), vehicle operation with a blood alcohol content of 0.04% or above (drivers for ‘passenger for hire’ vehicles like a limo, taxi, ridesharing, Lyft, Uber drivers, etc.)
In addition to the above per se BAC limits, the state also has two zero-tolerance statutes, of which violation isn’t a criminal but a civil violation. They are:
- VC 23136, zero-tolerance statute for underage motorists— The legal age of drinking alcohol in California is 21 years. Thus, a driver who is not yet lawfully allowed to consume or purchase alcohol is deemed legally intoxicated if they undergo testing. The tests reveal that they have a blood alcohol content of as low as 0.01%.
- VC 23154, zero-tolerance statute for offenders on drunk-driving probation— Drivers on drunk-driving probation violate VC 23154 in the same way as underage drivers violate VC 23136. That is, by operating an automobile with a .01% or higher BAC.
Note that if you’re caught violating VC 23136 or 23154, you could also face drunk-driving charges under any of the per se laws we have mentioned, depending on your BAC level. This is to say that you could be subject to two DUI charges.
BAC and Standard DUI
If you are an adult non-commercial driver, you can also face DUI charges under VC 23152(a). This is what’s called standard DUI. Here, your BAC doesn’t have to be .08% for you to be convicted. Provided you were alcohol-impaired while driving, you will be sentenced under this law even if your BAC was below 0.08%.
The arresting officer has the discretion to establish whether your mental faculties are impaired to the extent you are incapable of safely operating your auto. In this case, he/she will observe your exhibiting conduct consistent with an individual who is impaired by alcohol or drugs. Similarly, if you were impaired due to marijuana use, your blood alcohol content would be 0.0%. However, if the police saw you driving slowly, swerving, or if you’d been in an accident, he/she could suspect that you’re intoxicated.
How Does an Officer Determine If Your Are Impaired, or Your BAC is Below .08%?
Arresting officers have undergone training to detect driver impairment signs. First, the officer will observe your vehicle operation. If your driving is erratic, i.e., failure to keep up with the traffic flow, swerving, quickly turning, failing to signal while turning, driving on the wrong side of the road, or you displayed any conduct that would cause a traffic stop, he/she could arrest you. These are the signs that can make you be convicted under VC 23152(a).
Secondly, arresting officers use field sobriety tests. An officer will stop you and request that you step out of the vehicle. Note that you don’t have to agree to FSTs. These tests are used to gather proof against you to show that you were driving when impaired.
Whereas field sobriety tests are subjective concerning how officers gather proof, scientific facts back up the frequency with which they, when properly taken, identify a motorist with a BAC above a given level. When you don’t have a BAC beyond the stipulated legal limit, FSTs results may lead to your conviction for impaired driving.
BAC level can be determined through a breath, blood, or sometimes, urine test.
Breath tests are commonly known as breathalyzer tests. They’re the most straightforward method by which an arresting officer can administer BAC testing. In California, the police give two kinds of breath tests to determine BAC. The tests are administered during two different stages in the DUI process. They are:
A PAS (Preliminary Alcohol Screening) Test
A breathalyzer test is performed at the roadside after a traffic stop before the officer arrests you. If you think your BAC may be past the lawful limit, taking the PAS test may not serve well. You may decline to do it, but the police may still arrest you anyway. In case your BAC level is less than the lawful limit, you’re also entitled to decline the test, or you may take it just to prove you’re not drunk. However, if you’re below twenty-one years or on probation for DUI, you may not decline to take a PAS test without facing the consequences.
A Post-Arrest Evidentiary Breath Test
This kind of breath test is usually administered at the hospital, on a desktop device at the police station or, at a sobriety checkpoint on a mobile police unit. You may not decline this test without facing penalties. Usually, you should be allowed to select between blood or breath testing. But, in certain cases, the arresting officer can ask you to undergo blood testing, even if you have chosen to do a breath test, meaning you can do both a breath and blood test or a blood test instead of breath testing. The officer does this if he/she reasonably believes you are drug-intoxicated.
So how does a breathalyzer work? The arresting officer will request you to blow into the breathalyzer for a given period. You are required to blow in the air that’s in the deepest part of your lungs as this kind of air is closest to your blood supply and is a better indicator of your BAC level.
A breathalyzer doesn’t measure the alcohol percentage in a person’s blood directly. Instead, if it captures your deep lung breath, it will multiply the alcohol amount in the breath by 2100. This number is your blood-to-breath ratio. This ratio tells the officer the alcohol level in your blood at that time.
A breathalyzer test has to be administered within two hours of your arrest. Before it’s given, the arresting officer must monitor you for at least 15 minutes. During this period, you won’t be permitted to take a mouthwash, chew gum, or put anything else in your mouth. This is to guard against false reading caused by the introduction of a chemical substance into your mouth.
Generally, a blood test is considered more accurate than a breath test since it simply measures your blood’s alcohol amount without manipulation or calculation. This kind of testing is usually administered at the police station or hospital and not by the roadside like the PAS test. Whereas the measurement itself may be more accurate, the delay in giving the blood test can make the results be discredited. The primary benefit of blood testing over breath testing is that a small amount of the sample can be spared for later use, meaning your defense attorney can obtain it and take it for independent testing.
Urine tests don’t usually measure BAC in California DUI cases, but you may be required to take it under given circumstances. A DUI urine test accurately detects the presence of alcohol in your blood, but it’s less reliable than a breath or blood test for detecting the exact alcohol amount that’s present. Thus, you’ll only be allowed to undergo this testing if:
- Both breath & blood testing aren’t available.
- You’re unable to submit to one of the tests, and the other isn’t available.
Reasons you may be unable to perform a breath or blood test may include:
- An extremely high unconsciousness/inebriation level, which makes it hard or impossible to undergo breath testing
- A health condition like a clotting or breathing disorder
BAC Chemical Test Refusal
As we mentioned above, you can decline a roadside side PAS test without facing any consequences unless you are under 21 or on DUI probation. The same isn’t the case for chemical testing (blood/urine and post-arrest breath test). Even though you could still refuse chemical testing, you’ll face the consequences for that.
The only benefit of declining chemical testing is there won’t be a way to prove your BAC. This may be useful in avoiding a conviction of DUI. The DA will be required to demonstrate guilt by proving that your driving was indeed impaired by drugs or alcohol.
But declining to submit to chemical testing is in itself admissible as proof of guilt and could be an aggravating factor. The penalties of chemical test refusal are:
- Automatic driver’s suspension for a minimum of a year
- Additional jail time if eventually convicted of DUI
- DUI school for nine months, instead of the usual three months, if convicted
Limitations of Chemical BAC Testing
Although blood alcohol testing is scientific, the results are not always 100% accurate. Scientific tests may be affected by different factors. In case your BAC is above or at the lawful limit, it’s critical to determine what factors might have impacted the results. These factors could limit the accuracy of chemical DUI tests:
- Breathing patterns
- Radiofrequency interference
- Alcohol residue in your mouth
- Delays in administering the tests
- Improperly administered tests
- Improperly stored breath and blood samples
Blood Alcohol Concentration as an Aggravating Factor
As we mentioned before, one of the proofs that the courts consider when deciding on a drunk-driving case is the BAC. It is unlawful to operate a vehicle with a blood alcohol concentration of 0.08% or above. But VC 23578 requires judges to consider a blood alcohol concentration of 0.15% or more as an aggravating factor that could attract an enhanced sentence. Even when you are sentenced to probation instead of jail, the court is likely to impose punitive conditions that will make your life more difficult.
Since a higher than stipulated BAC limit is an aggravating element, the judge generally considers two primary factors before imposing an enhanced penalty. These are the specific circumstances surrounding your case and your prior convictions, particularly those related to past DUI cases. This helps the court to determine, for instance, how much prison/jail time or how high a fine to impose. Retaining a DUI defense attorney, even if you’re planning to plead guilty, is critical as it may mitigate the severity of the penalties that come with this aggravating factor and keep you out of prison/jail.
Defending Against BAC Test Results
In all criminal cases, the law states that you’re innocent until proven guilty. Therefore, when facing DUI charges, even if your BAC level is beyond the stipulated legal limit, the prosecutor still has to prove before the court that you’re guilty, and the law permits for several legal defenses against a high BAC.
One common presumption that most DUI defendants make is that they can’t challenge the DUI chemical test results. This isn’t true. Just because a blood/breath test reveals a higher BAC level doesn’t mean the results are correct. Blood testing equipment and breathalyzers are prone to errors. Also, the law provides procedures and rules the police should follow when giving these tests. Because the prosecution relies on the chemical test results to substantiate your blood alcohol concentration level and guilt, having them discredited provides a solid basis for your defense. You can seek to have breath or blood test results thrown out by arguing that:
- The officer didn’t properly advise you of the consequences and options involved in undergoing DUI chemical testing.
- The officer didn’t follow the correct procedures when giving the chemical test.
- The breath/blood sample wasn’t kept properly, and therefore, was probably contaminated.
- You were on a low carbohydrate or high protein diet.
- You suffered a health condition, for instance, diabetes, that led to a falsely high BAC reading.
- You had residual mouth alcohol.
- The testing instrument wasn’t correctly calibrated as per the law.
- You had rising blood alcohol when taking the test, which means your BAC level was lower at the time of driving.
Apart from challenging the BAC test results, you can also argue that you weren’t driving at the time of the traffic stop.
You must talk to your attorney as early as possible after you have been arrested and charged. In most cases, a skilled lawyer can have your charges dropped without having to go to trial. Or, he/she can have your charges reduced, meaning you may face lenient penalties. Having an attorney by your side is the best way to defend your rights and have a chance to present a solid case if you must proceed to trial.
Hire an Experienced DUI Criminal Defense Attorney Near Me
Are you under arrest for DUI in Bakersfield? Having a drunk-driving conviction on your criminal record could make your life extremely difficult. Not only will you risk losing your privilege to drive, but you may also go to jail, pay a hefty fine, and be required to join a mandatory counseling program. You have the legal right to contest any proof the DA may have against you, including BAC test results, to avoid all these consequences.
Hiring a DUI defense Attorney to help fight your case may increase your chance of success. You must act fast, particularly if you don’t want to face license suspension. Call Bakersfield DUI Attorneys today at 661-215-5660 to schedule a cost-free consultation. We will advise you on how to proceed with your case and how we can help.