Under California law, it does not matter how drunk, high, or sober the driver feels. Anyone who is driving while impaired by any substance or with a blood alcohol content (BAC) over the legal limit can be charged with driving under the influence (DUI). Unfortunately, some police officers may suspect a driver is impaired even if the driver has not consumed any alcohol or drugs.
When the police and prosecutors rely on unscientific evidence and observations to determine if a driver is impaired or not, the defendant deserves to have someone on his or her side to fight back against criminal charges. If you are arrested for a DUI in the East Bay, contact the experienced California DUI lawyer Lynn Gorelick today.
How can I tell if I'm over the legal limit in California?
It is not easy to tell if a driver is over the legal limit. Alcohol affects different people in different ways. Time, weight, body composition, age, sex, and medical issues can all affect how someone is impacted when consuming alcohol. Even if a driver doesn't feel impaired and is driving safely, the driver's blood test may show they are over the legal limit.
Charts can give drivers a general idea about their BAC after consuming alcohol but these general rules can be unreliable. For example, when counting “one drink” on the chart, a 12-ounce light beer should not be counted the same as a 16-ounce high alcohol IPA.
There are portable breath testing devices that are available for the consumer to buy. These can give drivers an idea of their alcohol levels by breathing into the device for a test. However, these are not always accurate and shouldn't be relied upon to give an accurate measure of the driver's BAC.
Can I be arrested for a DUI just because the police officer smells marijuana?
Marijuana can be tricky for drivers, especially now that marijuana and other cannabis products are legal for recreational use in California. California DUI laws apply to alcohol and other substances, including marijuana. A police officer may arrest a driver on suspicion of a DUI if the officer smells marijuana on the driver or in the vehicle.
The police officer may not be able to tell if a driver is “high” or impaired by marijuana. However, the officer may have probable cause to make an arrest with the combination of smelling marijuana and driving. After an arrest, the driver will generally have to give a blood sample to test for the presence and amount of chemicals related to using marijuana.
Why was I arrested even though my BAC was below the legal limit?
Driving with a BAC over the legal limit is a per se violation of the law, even if the driver was driving perfectly. However, a driver can still be considered impaired even with a BAC below the legal limit. If the driver has a BAC below 0.08% and the officer suspects the driver may be impaired, the officer may arrest the driver.
After a chemical test, even if the driver still has a BAC below the limit, the prosecutor may have a higher burden of proof to get a DUI conviction. However, the prosecutor can use the police officer's testimony about how the individual was driving in addition to the presence of alcohol to show the driver was impaired.
If I was driving safely, how can I be considered “impaired”?
For a per se DUI, it does not matter how safe the driver was operating the vehicle. It only matters what the driver's blood alcohol level was after a chemical test. If the test shows the driver had a BAC above the limit while operating a vehicle, the driver may be in violation of California's DUI laws.
In many cases, a person is pulled over for a DUI for common traffic violations. The driver may be pulled over for having an expired registration, broken taillight, failing to use a turn signal, or have a cracked windshield. If the officer then suspects the driver may be impaired by alcohol or drug, they may make an arrest even if the vehicle was being operated safely.
DUI Defense by East Bay Criminal Defense Lawyer
East Bay attorney Lynn Gorelick has more than 30 years of DUI experience and understands how to challenge chemical testing and the police officer's impression of an “impaired” driver. If you are facing criminal charges for a DUI in Contra Costa County and Alameda County, contact East Bay DUI lawyer Lynn Gorelick today.