Yes… and no.
Yes - as long as you are at least 21, under a .08, and/or your driving is
not impaired. You are legally presumed to be impaired if you are .08 or more.
No - it is never legal to literally drink and drive, i.e. open container.
MYTH: I cannot be arrested for DUI unless my BAC was at least .08.
There are two sections to drunk driving, 23152(a) and 23152(b). The (a)
section 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". The (b) section
states, "It is unlawful for any person who has a 0.08 percent or
more, by weight, of alcohol in his or her blood to drive a vehicle".
So what's the difference and how is it applied? The best way to explain
it is by examples:
Driver #1 is a light drinker, has two beers, and is very tipsy. His balance, coordination,
driving, etc., are impaired. This officer must articulate that the effects
of alcohol impaired his ability to drive safely and can arrest him under
the (a) section, regardless of the BAC.
Driver #2 had four beers and has a BAC of .09. He can be arrested for the (b) section.
And because the law presumes a person's driving to be impaired if
they are at least a .08, he can also be arrested for the (a) section.
Here are additional Vehicle Codes related to drinking and driving:
VC 23220 addresses drinking
while driving, which is always illegal in California.
VC 23222 addresses having an open container
VC 23223 addresses having an open container
while in the motor vehicle, not driving.
*Open containers: includes any alcoholic beverage (can, bottle, or other
receptacle) which has been opened or has a broken seal.
Get Your Free Consultation
The charges and penalties for drinking and driving can range greatly, from
an infraction and fine to a felony and prison. At the Law Offices of Jarrod
Wilfert, we have an experienced team that can help assist you through
your legal troubles. Please call for a FREE consultation with a seasoned
Ventura County DUI attorney, (805) 994.0560.