As per the vehicle Code 23152 (A), anyone arrested driving under the influence is eligible for an arrest. The statute states that the Blood Alcohol Content, commonly regarded as BAC, should be at 0.08% or higher to charge the driver with a DUI offense. Both minor and severe punishments follow after a DUI conviction. Therefore, it is recommended to seek professional legal intervention to have your rights upheld during your trial. The Law Offices Of Ross Howell Sobel is ready to help you in this process.

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Definition of BAC According to California Law

Blood Alcohol Content (BAC) is the measurement of the amount of alcohol content in the bloodstream of a person. Other terms used to refer to BAC include blood alcohol level and blood alcohol content.

The amount of alcohol in the bloodstream is expressed in percentages such as 0.08%, which is the legal limit provided by the California laws. The portion represents the amount of alcohol (grams) present in 100 mm of blood.

When the percentage surpasses the legal requirement, a person is considered incompetent to drive and risks facing a DUI charge. However, if the portion is lower than 0.08%, the driver is ineligible for DUI charges, in most cases. Even so, one can still get charged with a DUI if he or she exhibits any signs of impairment. An officer can determine the BAC of a driver through a blood test or a breath test.

How Prosecutors Use BAC in Court

Prosecutors will use BAC to prove that you were:

  • Over the legal BAC requirements and you are guilty under the DUI Per Se Law
  • Impaired by the high BAC percentage

A DUI per se requires an objective consideration of the impairment. Therefore, if your BAC was above 0.08%, and you were in a private vehicle, you will be legally considered to be extremely drunk to drive.

On the other hand, the prosecutor considers DUI as a subjective test that results from a high BAC. In that case, the prosecutor must provide evidence of your impairment. Some of the facts that prove your impairment include:

  • Proof that you were driving the vehicle
  • A testimony showing that you exhibited both physical symptoms and driving patterns of intoxication
  • Testimonies from witnesses such as passengers in the vehicle, if any.

How BAC is Measured

A traffic officer can measure BAC through the administration of a DUI breath test or a blood test. Results from both tests can be admitted in court. Here is a closer look at both tests.

DUI Breath Test

This is the most common BAC tests used in California. The test has minimal effect and delivers instant results as well. Traffic officers usually use a breathalyzer that tests the alcohol present in the driver’s breath. The alcohol content available on the breath represents the alcohol measurement available in the most profound part of the driver’s lung. The breathalyzer then converts the breath into an approximate blood alcohol percentage. The formula that represents the alcohol percentage is considered partition ratio, with a minimum of 1: 2,100ml considered as above the required levels.

The breath tests fall under two categories, namely:

Pre-arrest ( Preliminary alcohol screening ( PAS ) tests

the pre-arrest test is done once a traffic officer stops a driver in a DUI sobriety checkpoint. The officer might decline to administer the test if the driver is under probation for a previous DUI offense and/ or is below the age of 21.

Post-arrest breath test

Once a driver gets arrested for a DUI, he or she has the choice to take a breath or a blood test. One must take the test whether he or she had previously taken the PAS test or not. Failing to take the test can lead to the suspension of your driver’s license. The post-arrest breath test takes place at the police station using a desktop device. The test is similar to a PAS test and is not optional.

Blood Tests

This kind of test usually measures the level of alcohol in the blood of the alleged suspect. It provides the most accurate results compared to the breath test if everything goes as required.

The state requires a licensed professional to draw the blood and handle the necessary tests. The testing might take a few weeks before the attorney representing the driver gets the results. One of the pros of using this test is the ability to save the samples for a later date. In that case, your lawyer can do independent tests as a way of building your defense.

Urine Tests

The possibility of undertaking a urine test is quite minimal, unless under specific conditions. In California, one will take a urine test if both blood and breath tests are unavailable, and the arrested person cannot take both tests.

Some of the reasons that make one incapable of taking the tests include:

  • Extremely high level of unconsciousness that makes it hard for the person to breath
  • A medical condition such as clotting or breathing disorder

The Legal Limit For BAC

The California laws provide that anyone caught driving with a blood alcohol content above the required level is under the influence. The law considers this as per se, meaning that the offense is a violation by itself. For such an offense, the prosecutor does not need to provide evidence that shows that the driver was impaired.

The law considers the following offenses as per se:

  • An adult driving a vehicle with a BAC of 0.08% or higher
  • An underage driver (below 21 years) driving with a BAC of 0.05% of more
  • Driving a passenger hire vehicle with at least 0.04% BAC

The state also implements a Zero Tolerance Law on an offense that involves an underage driver with a BAC of 0.01% or more.

Ways to FIght DUI Tests Results In A Court Trial

A professional attorney should come up with relevant and reasonable defenses that will help in winning your case related to BAC within or above the required limit. Some of the legal defenses that the attorney can use include:

Challenging The Accuracy of The Breathalyzer

Since the breathalyzer does not measure the alcohol content directly, this can be an ideal loophole to utilize when building your defense. The breathalyzer usually assumes a ratio of 1: 2,100 once a person exhales his or her breath. However, the ratios typically range from 1: 1,300 depending on aspects such as the breathing patterns, body weight, sex, and body temperatures.

Also, you can challenge the breathalyzer based on its features. Some of the possible ways to challenge its features are:

  • The margin of error
  • Incorrect use by the police
  • Improper maintenance
  • Poor maintenance

The High BAC Level Resulted From A Medical Condition

Medical conditions such as Gastroesophageal Reflux Disease(GERD), heartburn, and acid reflux can easily cause faulty results in a Breathalyzer. GERD may cause alcohol to travel back to the mouth from the stomach leading to inaccurate BAC measurements that are up to 0.02 higher.

Also, the problem is common when one takes a spicy or greasy meal and experience heartburn or acid reflux. Taking a BAC test after such a meal can lead to errors in the results.

Inaccurate Blood Test

If the police officer proceeded into taking a blood test, you could use the process of testing against him or her. You can claim that the blood sat for more than the required time without testing, or the testing was wrongly taken. One way to determine the accuracy of the blood tests is by filing a blood split motion that retests the blood independently along with the testing conducted by the authorities.

You Were Low On Carbs

Taking meals that are low in carbs can easily trigger a high BAC result during a DUI breath test. When one takes a high-protein diet, the body usually produces ketosis since it burns stored body fat to produce energy. Therefore, if one consumes carbohydrates, ketosis may cause the body to produce isopropyl alcohol that the breathalyzer mistakes to be ethanol.

Your Blood Alcohol Content Was On The Rise

It takes about 45 minutes to 3 hours for alcohol to be fully absorbed. The delay can cause a rise in blood alcohol content if you wait around. The peak of the blood alcohol content usually varies depending on the body, your meal, and other factors.

One way to use this defense is by showing that the driver took significant time before administering the BAC test, and you did not portray any patterns of intoxication during the stoppage.

Find a DUI Attorney Near Me

Dealing with a BAC can be challenging. It requires the intervention of a professional attorney who can match the requirements needed to build a strong defense. Failure to consider an attorney can lead to a severe sentence that you could have avoided. We at The Law Offices of Ross Howell Sobel are committed to ensuring that you get the right legal representation for your DUI case. Contact us at 818-582-2350 and have one of our attorneys reach out to you.

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